author: Watiuks, J.

text:
    No. 13,312.
    Fischer Land and Improvement Co. vs. Landry L. Bordelon, President, Police Jury.
    Syllabus.
    A parish is an involuntary corporation vested with a portion oí the political powers of the State, and exercises only a legislative authority.- It is not liable in damages for torts or trespass committed upon the property of individual citizens to whom it sustains no private relations. In this respect, the parochial differs essentially from the'municipal corporation.
    APPEAL from the Tenth Judicial District, Parish of Avoyelles. Lafargue, J.

      Saunders & Gurley and Joseph Clifton Cappel for Plaintiff, Appellant.

      Charles V. Porter, District Attorney, (Jbjfrion & Joffrion of Counsel) for Defendant, Appellee.
   The opinion of the court was delivered by

Watiuks, J.

The plaintiff seeks to recover from the Parish of Avoyelles, in its corporate capacity, the sum of seventy-five thousand dollars damages, for this, to-wit:.

That it is the owner of several thousand acres of swamp-land situated in said parish, which is heavily timbered with cypress and other valuable timber. That a contract was made with the Police Jury of said parish, represented by a formal resolution, whereby its transferer, Conrad 13. Fischer, was granted the right to construct a dam or lock on what is known as the Old Canal, connecting Turner’s Bayou with Bayou Jack; and in compliance with the provision,of said resolution, Fischer furnished bond with good and solvent security in the sum of five thousand, dollars, to cover, any damages that might be sustained by any property owners in the vicinity of said lands from overflow or other causes attributable to the construction or operation of said dam.

That in consideration of said privilege, Fischer purchased and entered about thirty thousand acres of swamp land, with the view of manufacturing the timber thereon into lumber.

That in pursuance of said contract, Fischer constructed a dam or lock in said canal, in accordance with said resolution; and in order to successfully operate the same, built protecting wings or levees at groat expense and extended them out from said locks in sufficient height and length to enable him to float and market the saw-logs cut from said timber, and mat same were absolutely necessary for that purpose.

. That as the water held by petitioner’s dams and levees began to accumulate on petitioner’s lands, sundry persons of the defendant parish, most of them residing on Bayou. Jack, did during such time on divers and frequent occasions, openly threaten to destroy petitioner’s property, levees and dams,'and did threaten xoetitioner’s workmen, who were engaged in working on said timber, and' by intimidation and assault did drive many of them from their work; that said residents, on divers and frequent occasions, held open and public mass meetings, threatening the cutting' and destruction of petitioner’s property and to bodily harm the petitioner’s workmen.

That all of said facts and acts were made known to the Police Jury of the defendant parish, and that instead of trying- t'o prevent such mob violeuce, such officers openly encouraged said citizens to commit said acts of destruction and waste.

That, notwithstanding petitioner made frequent demands of the president of the Police Jury of the defendant parish, as well as the sheriff of same, to protect its property, calling attention to the threats which had been made, and offering' to advance the necessary money to guard their said property, said officers disregarded all such appeals, and encouraged said mob violence; and that said Police Jury at the most critical period of time, and-in the very heat of such open threats, repealed the original resolution granting the right to build said locks and dams, and without any notice to petitioner.

That on or about the 16th of April, 189J, petitioner’s said locks were cut and destroyed by the mob, composed of about seventy-five citizens from the aforesaid portion of said defendant parish — the names of several of them being enumerated, and the statement is then made that others of the party were unknown.

That the aforesaid willful destruction of their property, by such mob violence, was but the execution of previous threats, and same could not be prevented by petitioner, and was encouraged by the unwarranted action of the Police Jury in attempting to repeal the aforesaid resolution.

That having been apprised of these threats, they did all in their power to pacify the mob, offering to pay any damages shown, without resort to litigation; that these offers were repeatedly made to citizens directly and through the Police' Jury.

That it was the duty and obligation of the lawful authorities of the parish of Avoyelles to protect petitioner’s property and workmen, and that they could have easily done so; that they failed in their duty and that such failure caused the damages hereinbefore and hereinafter complained of; and that said parish is liable therefor.

Thereupon, plaintiff’s petition circumstantially recites the various particulars of the damages it alleges it sustained, and aggregating the sum mentioned.

The petition concludes with the following averment, to-wit:

“That said parish of Avoyelles is directly responsible for all loss and “ damages occasioned by the unlawful and violent destruction of pe- “ titioner’s property by the mob of citizens as above set forth, and is, “ therefore, indebted unto petitioner in the amount claimed.”

Without answering to the merits, the defendant tendered a plea of no cause of action; and said exception having been sustained and suit dismissed, the plaintiff prosecutes the present appeal from a judgment of dismissal.

In the argument of plaintiff’s counsel at the submission of the cause, and in their brief as well, the statement is made that this suit is instituted under Section 2453 of the Revised Statutes, which provides :

“The different municipal corporations in this State shall be liable “ for the damages done to property by mobs or riotous assemblages in “ their respective limits.”

And, thereupon, the further statement is made that the defendant’s exception “proceeds upon the theory that this section applies to cities and towns only, and that the words ‘municipal corporations’ do not embrace parishes.”

The argument on the pftrt of the defendant is, that a parochial corporation is not liable in damages because of the wrongful performance, by its officers, of such duties as pertain to the police or public powers of the State, or for the negligent failure of its officers to perform such duties, in the absence of a statute creating liability.

That there is a marked, distinction between the powers and duties and the resultant liability of municipal corporations, proper, such as chartered cities, towns and villages, and quasi or involuntary corporations, such as counties, parishes, etc.

That Section 2453 of the Revised Statutes does not apply to, or include parochial corporations; that iff the sense of that statute a parochial corporation is not a municipal corporation.

That the legislation of the State as well as the jurisprudence of this court, have always preserved a distinction between municipal and parochial corporations; that consequently, the parish of Avoyelles is not liable to the plaintiff for the causes assigned.

Presumably, it was upon this ground that the district judge sustained the defendant’s exception of no cause of action and dismissed its suit.

Consequently, the limit of our decision must be restricted to the definition of that term; that is to say, whether the term “municipal ■corporations” is to be restricted to cities and towns only, or so construed as to embrace parishes.

This court had under consideration a question of damages ex delicto against a municipality, in the case of City of New Orleans vs. Kerr, 50th Ann., 413; and we there decided that the powers and obligations of municipal corporations like the city of New Orleans, are two fold in character: those that are of a public nature, and those of a private nature — citing various decisions of this court. 1

Wo further held that in respect “to the first oi; public character of its powers and obligations, the municipal corporation represents the State — discharging duties incumbent on the State. As to the second, or private character of its powers and obligations, the municipal corporations represents the pecuniary and proprietary interests of individuals. As to the first, where a municipal corporation acts as the agent of the State, it becomes a representative of the sovereignty, and is not answerable for the nonfeasance or malfeasance of its public agents.

“As to the second, the rules which govern the responsibility of individuals are properly applicable” — citing various authorities.

It is the duties and obligations of the second character which plaintiff, in this case, seeks to enforce against the parochial corporation of Avoyelles — treating it as a municipal corporation, and demanding damages arising from the alleged tort.

Rut, the insistence of counsel for the defendant is, that a parish is not a municipal corporation per *'s, but is only a political division of the State, and, as such, is but the agent of the State, and the representative, in part, of its sovereignty, and is not, therefore, answerable in damages to the plaintiff; and that no liability attaches to the defendant on account of the alleged acts of nonfeasance of her officers.

In other words, that a parish possesses and exercises no powers of a private character, such as those incident to a municipal corporation, and, therefore, does not represent the pecuniary and proprietary interests of the individual citizens of the parish.

This court recently had, also, under consideration a case in damages ex delicto, against a parochial corporation, in Sherman vs. Parish of Vermillion, 51st Ann., 880 — the case being that of a party serving on a jury in a criminal case, and receiving injuries while in the care of the sheriff from which he died, and the charge being that the sheriff “was culpably negligent in giving their son and other members of the jury directions to go to a given spot in the dark, which instead of being as it should have been, a safe place, was a pit in which he fell and fatally injured himself.”

In that case a plea of no cause of action was tendered, and sustained, and plaintiffs suit dismissed; and in the course of our opinion, we said:

“Police Juries have authority of administration of parish affairs, and have nothing to do with the trial of criminal cases. They, under delegated powers, expressed or implied, represent the parish.

* * -s ' * *■ *

“.So, as far as we have been able to examine, all the well considered decisions hold, that political divisions of the State are not responsible for damages in cases such as the one before us for decision. The decisions generally hold that in such eases, the political divisions of the State represent the sovereign, and, therefore, are not responsible in damages.

“These decisions apply, we think, in our State as they do where the town and county system prevails.

-x- * * * x- -x-

“In the light of judicial decisions, the parish is not liable in an action by a party injured because of the negligence of an officer to perform a corporate duty in a criminal case, unless such action is given by statute. Cooley on Constitutional Limitations, p. 246.”

Again we said:

“If the parish were held responsible, they alone would have to pay the damages. We have not found any law under which they may be held for said damages'. They, the local authorities, the Police Jury, are vested with such powers and prerogatives as are necessary to make rules for the government of their affairs.

“The citizens can not be held responsible for the agents of the State, when acting for the State, in maintaining local government.”

The opinion then quotes with favor the following paragraph from Cooley’s Constitutional Limitations, to-wit:

“On the other hand, it is settled, that those corporations are not liable to a private action at the suit of a party injured by a neglect of its officers to perform a corporate duty, unless such action is given by statute.” p. 246.

Thereupon our opinion says:

“The weight of judicial decisions, we think, and all the commentators upon the subject, sustain this view.”

Entertaining this view, this court affirmed the judgment appealed from.

We might rest our decision of the present case upon the authority of those two decisions, but for the fact that counsel for the plaintiff insists that the law has provided a remedy to meet the exigencies of the situation; and they cite the provisions of the Revised Statutes above referred to, to the effect that “the different municipal corporations in this State shall be liable for the damages done to property by mobs or riotous assemblages, in their respective limits” — insisting that a parish conies within the reasonable intendment of the term “municipal corporations”.

To that effect he has cited several decisions of this court in which the terms parish and municipal corporations have been used convert-jblv.

They are the following:

King vs. Police Jury of St. Landry Parish, 12th Ann., 859; Parker vs. Seorgin, 12 Ann., 61; Police Jury of Ouachita vs. Bray, 3rd Rob., 197; Chaudet vs. John, 16 Ann., 400; Lisso vs. Parish of Red River, 29 Ann., 590; Drez vs. Parish of East Baton Rouge, 36 Ann., 307.

Per contra defendant’s counsel have cited a number of decisions of exactly contrary import, and among the number are the following:

Stewart vs. New Orleans, 9 Ann., 461; Lewis vs. City of New Orleans, 12 Ann., 190; Bennett vs. New Orleans, 14 Ann., 120; King vs. Police Jury of St. Landry, 12 Ann., 856; Howe vs. New Orleans, 12 Ann., 481; City of New Orleans vs. Kerr, 50 Ann., 413; Sherman vs. Parish of Vermillion, 51 Ann., 880; Railroad Company vs. City of New Orleans, 26 Ann., 491; City of New Orleans vs. Abagnatto, 26 L. R. A., 392, 62 Fed. Rep., 240.

An examination of these decisions referred to, disclose that there are chance or accidental expressions contained in some of them which would indicate the correctness of the plaintiff’s view; but we do not regard any of them as being at all authoritative on the question.

The topic in the Revised Statutes wherein the provision relied upon is found is “Municipal Corporations”; but there are other sections than the one referred to, which lead to an opposite interpretation.

But uo where is the distinction, between parishes and municipal corporations more clearly defined than in the present Constitution of the State.

Article 229 declares that “no political corporation shall impose a greater license than is imposed by the General Assembly for State purposes. * * * The General Assembly shall have authority to provide that municipalities levying license taxes, equal in amount to those levied by Police Juries for parochial purposes, shall be exempt from the payment of such parochial licenses.”

Article 230 provides that “there shall also be exempt from parochial and municipal taxation for a period of ten years from the 1st of January, 1900, etc.”

It further provides “that when aid has heretofore' been voted by any parish, ward, or municipality, to any railroad, etc.”'

Article 232 provides that “the State tax on property for all purposes whatsoever * * * shall not exceed -in one year * * * and no parish, municipality or public board tax for all purposes whatsoever, shall exceed in any one year ten mills on the dollar of valuation.”

Article 277 provides that “the General Assembly may establish and organize new parishes, which shall be bodies corporate, with such powers as may be prescribed by law, but no new parish shall contain less than 625 square miles, nor less than 7000 inhabitants; nor shall any parish be reduced below that area or number of inhabitants.”

Article 281 provides “municipal corporations, parishes, and drainage districts, the city of New Orleans excepted, when authorized to do so by a vote of the majority in number and amount of the property tax-payers, etc.”

The clear distinction taken by these constitutional provisions between municipal corporations and parishes, can leave no doubt upon our minds as to the proper conclusion in regard to the issue before the court; bub the adjudications on the question are equally clear.

In Mayer vs. Ray, 19 Wall., 475, the Supreme Court said:

“A municipal corporation is a subordinate branch of the domestic government of a State.”

In East Tennessee University vs. Knoxville, 6 Baxter, 166, it was held by the Tennessee court that a municipal corporation is a body corporate established by law to share in the civil government of the county, but chiefly to regulate the local internal affairs of a city, town or district incorporated.”

Judge Dillon defines a municipal'corporation to be “the incorporation by the authority of government, of the inhabitants of a particular place, or district, and authorizing them in their corporate capacities to exercise subordinate and specified powers of legislation with respect to their local government, which is the distinctive and distinguishing feature of a municipal corporation, proper.” 1 Dillon’s Mun. Corp., Sec. 20.

The parish or county is denominated in the books and known in the law and in the decisions, as á quasi or involuntary corporation, as distinguished from a municipal or voluntary corporation, possessing some corporate functions and attributes; but they are, primarily, political subdivisions of a State, merely.

The substance of the decisions on this subject is thus summarized in the American and English Encyclopaedia of Law:

“Involuntary, quasi corporations, such as counties, towns, etc., are created almost exclusively with a view to the policy of the State at large, for purposes of political organization and in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transportation, etc. They are not bodies corporate and politic within the general power of corporations; but are mere political subdivisions of the State, having the powers expressly granted to them, etc.” Volume 15, page 955.

To this effect are the following authorities:

Beach vs. Leahy, 11 Kan., 23; Hamilton vs. Mighels, 7 Ohio St., 109; Harris vs. School District, 28 N. H., 58; Mower vs. Inhabitants of Leicester, 9 Mass., 247; Morey vs. Town of Newfame, 8 Barber, 645; Talbot County vs. Queen Ann County, 50 Md., 245; Ward vs. Hartford County, 12 Conn., 404; Sopper vs. Henry County, 26 Iowa, 264; Freeholders vs. Strader, 18 N. J. (Law), 108.

One of the most accurate definitions of a county is given by the Ohio court in the decision cited supra, to-wit:

“A local subdivision created by the sovereign power of the State of its own will, without the particular solicitation or consent, or concurrent action of the people who inhabit it.”

The foregoing is in keeping with all the authorities on the question; and is equally well attested by the history and organization of this State.

On October 1, 1800, Spain ceded to France the colony or province of Louisiana, with the same extent that it then had in the hands of Spain, and that it had when France possessed it; and the French Republic ceded to the United States the same territory on April 13, 1803. By an Act of Congress of the 30th of March, 1805, a portion of the coded province was given a territorial form of government under the name of the Territory of Orleans, and the people of the territory adopted a constitution and State government, and same was admitted into the Union on the 8th of April, 1812. That constitution provided that representation, in the legislative department of the government, should be apportioned “to the several counties entitled to representation”; and the State was divided into fourteen senatorial districts. Section 10.

That section provides that “the parishes of St. Bernard, and Plaque-mine, including the country above * * * shall form one district.” “The Oity of New Orleans” — giving its boundaries — “shall form the second district; the remainder of the county of Orleans, shall form the third district. The counties of German Ooast, Acadia, Lafourche, Iberville, Pointe Coupee, Concordia, Attakapas, Opelousas, Rapides, Natchitoches and Ouachita shall each form one district, and each district shall elect a senator.”

That constitution was signed by delegates as representing the county of Orleans, and the other counties enumerated.

But the Constitution of 1845 provided, that “each parish shall have, at least, one representative” (Article 18); and the various parishes were enumerated. Originally, the division of the territory into counties, was evidently made by the territorial legislature; and the designation of the subdivisions of the State as parishes, was the result of State legislation — and amongst the number was the. parish of Orleans. To the latter was given a legislative representation of twenty-five; while the territory embracing same was divided by the Mississippi river, and to each portion was given one senator each — the city of New Orleans being entirely omitted.

That situation has continued until the present time.

This statement shows the manner in which Louisiana was evolved from a province into a territory, and from a territory into a State; and the manner in which the subdivisions of the province and territory, styled counties, became the parishes of the State, and how the city of New Orleans ceased to enjoy legislative representation, and the parish of Orleans was' substituted in its place.

This process of evolution in Louisiana is an illustration of the development of other States of the Union, as well as the development -of the States and governments of the Ancients — the city coming first and the State afterwards, and then the parish.

The city first created the State, and the State created the county and parish. The city of New Orleans first attracted conspicuous attention to the Louisiana province, and, doubtless, superinduced emigration from France, whereby it was chiefly populated.

The student of ancient history as connected with the study of political institutions has developed the fact, that the village-community is the unit of organization in the city and the State. Freeman's Comparative Politics.

In the course-of a lecture-of recent date, before the Louisiana Bar Association, on the “Comparative Study of Roman and English Law”, by Honorable Hannis Taylor, the idea of the village-community being the unit of organization of the city first, and afterwards the State, is most accurately portrayed; and the relation of the city to the State aptly and forcibly conveyed, as will be shown by the following extract therefrom:

“The most valuable single result so far attained by the application of the comparative method to the study of political institutions is “ embodied in the discovery that the unit of organization in all the “ Aryan nations, from Ireland to Hindoostan, was the naturally organ- “ ized association of kindred — the family swelled into a clan — which, “ in a settled state, assumed the form of a village-community. When “ we have firmly taken hold of that fact; when we clearly understand “ that the original unit of organization was the same in all the Aryan “ nations, whether situated on the shores of the Mediterranean or the “ Baltic, we have possessed ourselves of the atom or unit which, in “ different forms and different combinations, everywhere entered into the structure of the State.

“For the earliest illustration of the ancient conception of the State “ as the city-commonwealth, we must go to the Hellenic world in “ which the science of politics was born. The dominant political idea “ we there encounter is embodied in the independent city which stands “ toward all other cities as a sovereign commonwealth whose internal “ affairs are regulated by its own domestic constitution. When the in- “ tornal organization of such a city is examined, tbe fact is revealed “ that the city commonwealth is a composite whole, which has arisen “ out of the aggregation of village communities. In this system of “ cities, internally organized, after one general model, were contained “ the .political conditions with which Aristotle, the acknowledged founder of political science, was brought into contact, and from the “ first book of politics we learn that the State differs from the house- “ hold only as to the number of its members, a fact which will appear “ from an examination of its elements.

“Out' of the very necessities of social existence, aris,e the relations “ of husband and wife, parent and child, master and servant; and thus “ the household is formed.

“Out of a union of households arises the village or tribe; out ox a union of villages or tribes arises a community of a higher order— “ the State — which is the natural and necessary completion of the “ process of aggregation in which the family is the unit or starting “point. Neither the family nor the tribe is, in itself, sufficient for “ all the wants of social existence; it is only in a union of tribes — the “ State — that man finds the one forpj. of life that will fully develop all “ of his capabilities.”

Again:

“When we pass from the Greek to the Italian peninsula, we find the “ idea of the independent city to be the leading political idea, and we “ also find the Italian city to be the resultant of the process of ag- “ gregation heretofore described, in which the village-community, or “ clan is the unit or starting point. The idea of the State as an in- “ dependent city was never carried out, however, with the same com- “ pleteness in Italy as in Greece, for the reason that the Italian cities, “which were generally smaller than those of Greece, manifested a “ greater willingness to join 'together in confederations.

“In that way, the history of ancient Italy is far more a history of “ confederation than of single cities. And yet it was upon the soil of “ Italy that a group of village-communities grew into a single inde- “ pendent city that centralized within its walls the political power of “the world. The way in which Rome accomplished that marvelous. “ result, was by departing1 from the exclusive policy of the Greek “ cities, and by extending the right of Roman citizenship alike to her “ conquered enemies and to her faithful allies. The franchise o-f the “ Roman city was first extended to Italy, then to Gaul and Spain, and “ finally to the whole Roman world.

“In the end- a right so widely bestowed became, of course, utterly “ worthless; but the theory upon which the right was conferred was “ never, for a moment, lost sight of. The freemen who received the “ franchise of the Roman city could only enjoy it within her own “ walls; it was only within the local limits of the ruling city that the “ supreme powers of the state could be exercised.

“So, whether we take .for illustration the exclusively Greek city, or “ the great Latin city extending its franchise to all the world, the an- “ cient conception of the State as the city-commonwealth stands forth “ clearly and distinctly defined.”

From the foregoing liberal quotations from that celebrated writer, the distinction between the city and the State, as they originally existed in Greece and Italy, may be clearly perceived.

A careful consideration and study of the question, in connection with ihe authorities cited, has led us to the conclusion that the statute relied upon by plaintiff’s counsel is without application to parishes; but is to be restricted to municipal corporations, as its terms plainly imply.

That, while it is true that municipal corporations, are, under the present Constitution creatures of legislative; enactment, as well as parishes, their functions and powers are different.

The parish being a purely political and involuntary corporation, and vested with a portion of the political power and authority of the State, does not deal with individual citizens-in a personal capacity;, while the town or city is primarily a civil or voluntary corporation, not necessarily possessing any share in the political power of the State.

Statutes creating Police Juries, or boards for the government of the parishes, confer upon them only a qwasi-legislative authority, and the right to govern and control such matters as roads, bridges, ferries, and the like; but they provide them with no means or power of enforcing their ordinances.. They are created and organized under general laws which operate equally in every parish of the State — the parish of Orleans excepted.

On the contrary the various municipalities in the State are strictly local in character, and in their operation; and no two of them are, of necessity, alike in the powers which they possess, the mode of their exercise, or the objects to be attained.

Hence it is that the town and city may precede the State into which they become incorporated; but the parish must, of necessity, await the formation of the State. ■ '

.For the considerations and reasons herein assigned, we are clearly of opinion that the plaintiff has no right of action against the parish of Avoyelles.

Judgment affirmed.


source: Caselaw Access Project

author: MONROE, J.

license: Public Domain

text:
    No. 13,305.
    J. T. Phillips and W. B. Spencer vs. W. T. Adams Machine Company.
    Syllabus.
    ,1. where a non-resident litigant invokes the jurisdiction of one of the courts of this State, and obtains an order of seizure and sale, he will not lie heard to deny the authority of the same court to enjoin the seizure so ordered, on the ground that it was without jurisdiction rations personae. And when, in such a cause, a ewrator act lioe is appointed to represent the plaintiff in executory process, as defendant in injunction, and a default is properly entered as against such curator, the plea to jurisdiction, thereafter filed, comes too late.
    2. There is no conflict between the plea of “failure of consideration,” and the plea of “compensation,” in the alternative, as against the claim sued on, to the extent that it may be found that the consideration has not failed.
    3. Failure of consideration may extinguish an obligation and is a ground for-enjoining executory process under Article 739 of the Code of Practice.
    4. Where the failure of consideration is partial, the seizure should be enjoined only to the extent thereof, but not to cover an unliquidated claim for consequential damages.
    APPEAL from the Tenth Judicial District, Parish of Bapides. Hunter, J. ■ '

      Robert P. Hunter and Horace IP. White for Plaintiffs, Appellants.

      White & Thornton and Leven L. Ilooe for Defendants, Appellees.
   The opinion of the court was delivered by

MONROE, J.

This is a proceeding by injunction to stay executory process, which had been applied for by the W. T. Adams Machine Co., upon three notes of $714.29 each, secured by mortgage. ‘

The order for the issuance of the writ had been made and notice of the seizure had been prepared, though not served, when the injunction was applied for, and issued. The plaintiffs in injunction are the makers of the notes sued on, and the plaintiff in the threatened seizure is the original payee and holder of said notes.

The petition for injunction represents that the defendant, a corporation created under the laws of Mississippi, and domiciled at Corinth, has sued out an order of seizure and sale, etc..; that the notes sued on were “given in reference to, and to secure payment of part of the purchase price of certain saw mill machinery; * * * that only part of the machinery was ever delivered; that a large part of that which was delivered was defective; that the machinery was not matched and could not be put up without alteration, that there was an overcharge of freight on it, amounting to over $117, which defendants agreed to pay; that petitioners were put to great expense in altering and arranging the machinery, and that there has failed to be any valuable consideration given by defendants for said notes; they further show, that, on account of said defects, and on account of great and unnecessary delays, and of carelessness on the part of the defendant, in shipping said machinery, they have sustained a loss of four thousand eight hundred dollars, for three months’ enforced idleness of their saw mill, for which said machinery was purchased, * "x' * and that the total loss which they have sustained, amounts to the sum of $5,033.00 * *

“That all consideration .for said notes has failed, that they have been legally extinguished; and that, if any amount is due on them, said amount has been fully compensated by the items above set forth, and they specially plead compensation to the value, if any, that the court may find the machinery to be worth over the amount they have already paid for it, and they show and plead in reeonvention, that defendants owe them the sum of $5058.00, and attorney’s fees, in the sum of $200.00, for the suing out this injunction.”

■ To this petition is attached an itemized bill for labor in putting up machinery, cost of additional pieces, freight charges and loss of time, amounting to $4800.00.

The defendant filed certain exceptions, some of which were maintained, and the injunction was dissolved, and the suit dismissed. These exceptions will be considered seriaium, and are ds follows, to-wit:

“1. That your honorable court is without jurisdiction in the matter, defendants being residents of Mississippi and in no way subject to the jurisdiction of your said court, under the aforesaid proceedings.”

It is argued, in support of this exception, that, as no property was seized, and the defendants are non-residents, they are not subject to the jurisdiction of the court, for the purposes of the injunction; that the injunction was prematurely issued, and that the proceeding, being a separate suit from that in which the writ'óf seizure and sale was applied for, the i-econventional demand does not lie.

This, in our opinion, is purely an exception to jurisdiction rations personae, which, if decided in favor of the exceptor, would have left the lower court without jurisdiction to determine the other questions suggested in the brief.

The plaintiff in the executory proceeding invoked and voluntarily submitted itself to the jurisdiction of the court a qua. If that court had jurisdiction to order the issuance of a writ for the seizure of the property of the plaintiffs in injunction, it had jurisdiction to regulate or restrain the execution of said writ; in fact, as the property to be seized appears to lie in the parish of Rapides, no other court had jurisdiction in the premises. Under these circumstances, it may be added, that issue was properly joined by the default, taken, after service on the curator ad hoc appointed to represent the plaintiffs in the proposed seizure, and the exception, as filed, came too late. O. P., 333.

Tegarden vs. Powell, 15th Ann., 184.

“2. That the allegations set forth in the plaintiff’s petition, viz., 'want- of valuable consideration’, and ‘compensation’, are inconsistent, conflicting, contradictory, and self-destructive,, the one denying- the correctness of the other.”

We do not understand the plaintiffs in injunction as setting up an original want of consideration; on the contrary, we think the plain meaning of the petition is, that there was a consideration for the nptes when they were given, which consisted oi the obligation assumed by the Machinery Company,to deliver certain machinery upon certain conditions, and that, by reason of the failure of said company to comply with that obligation, there has been failure of said consideration. And the plea.of compensation is set up as an alternative to the plea of total failure of consideration, and, in case the court should hold that there has been only a partial failure, as a set-off to so much of tlie claim sued on, the consideration for which, it may be determined, has not failed. We find no conflict, or inconsistency in this pleading.

“(3). That, were the allegations of plaintiff’s petition not self-destructive, the first plea, or allegation contained therein 'that there has failed to be any valuable consideration given by defendants for the mortgage notes, under which executory process issued in the suit of W. T. Adams Machine Oo. vs. J. T. Phillips and W. B. Spencer, numbered 4829 on the docket of your said court’ is not sufficient or legal ground for the granting of an injunction.”

This exception must pre-suppose, or assume that “failure of consideration”, is not a legal ground, under Article 139, O. P., for the issuance of an injunction to stay executory process. If this proposition be sound, then the Machinery Company, having received notes, secured by mortgage, and, as a consideration therefor, haying contracted an obligation thereafter to deliver machinery, might withhold the machinery entirely and yet the makers of the notes would be helpless to prevent the seizure and sale of the property mortgaged.

We do not think the law susceptible of a construction which would bring about such a result. It reads: “Art. Y39. The debtor can only arrest the sale of the thing thus seized by alleging some of the following reasons, to-wit.

* *- -x- * ■» -x-

. “3. That it has been extinguished by transaction, novation, or some other legal manner.” ■ '

It is very clear to us that the failure of the payee of a note to fulfil the obligation which constitutes the consideration for which the note was given extinguishes, in a legal manner, the obligation of the maker of the note to pay it. If, as the defendant’s counsel assume, in the brief filed by them, the injunction had issued upon the allegation that there 'was an original want of consideration for the notes, their position would be stronger, and the authorities cited by them, pertinent. For, such an allegation would come in direct conflict, not only with the presumption arising from the existence and possession of the notes, but with the acknowledgment to the contrary witnessed by the authentic act of mortgage, and could only be entertained when coupled with an allegation of error or fraud. Besides, it might be argued, with much force, that to allege that a debt never existed, because there was never a consideration for it, would take the case from within the paragraph of Article 739, which has been quoted, since it cannot be said of that which never existed, that it has been extinguished. “Destruction presupposes existence or being;' it is impossible to extinguish nothing.” Hodgson vs. Hoth, 33rd Ann., 945. Upon the other hand, to allege that the obligation or promise, which constitutes the consideration fox which the notes were given, and the mortgage executed, had failed of fulfillment, in whole or in part, involves nothing impossible, absurd, or inadmissible as a matter of proof.

“4. That, even if the plea of compensation should not be inconsistent with, and contradictory to the plea of ‘want of valuable consideration’, an unliquidated claim, such as is set up in the plaintiff’s petition, can not be pleaded in compensation, or set up as the ground for the issuance of an injunction in executory proceedings.”'

If the plaintiffs in injunction, having alleged that the notes sued on were given in consideration of the obligation and promise of the Machinery Company to deliver certain machinery, had also alleged that none of the machinery had been delivered, and that they were not thereforg liable on the notes, such a defense could hardly be called a plea in compensation; and so, in the case as it stands, where it is alleged, not that the defendant failed wholly to deliver the machinery, but that it failed to comply with its obligation under the contract sued on, in that it failed to deliver part of the machinery; that a large part of 'that which was delivered was defective,, and that it failed to pay certain freight for which it was liable under its contract, the defense cannot be regarded as a plea in compensation, but as an averment or claim by way of defense, that the obligation to pay the notes was pro tanto extinguished and discharged. The plea of compensation addresses itself to so much of the obligation upon the notes as was not thus extinguished, including the claim for time lost in the mill, attorney’s fees, and material, or additional parts of machinery, together with labor in adjusting and putting same together, except in so far as such material, parts, and labor, were rendered necessary, by the failure of the defendant to deliver the machinery, as called for by its contract; and these claims are obnoxious to the objection which is urged against them, i. e. that they are not equally liquidated as the claim sued, on by the defendant. The article of the Civil Code, and some authorities bearing on the subject are to the following effect:

“Article 2209. Compensation takes place between two debts * * * which are equally liquidated and demandable.”

“A claim for damages can not be pleaded in compensation to a note.” Pike, Lapeyxe & Brother vs. Wells, 24th Ann., 208.

“Plaintiffs claim on a note can not be offset by open accounts not acknowledged by him.” New Orleans Gas Co. vs. Hill, 2nd Ann., 402.

Coleman vs. Marble, 9th Ann., 476.

Defendant, when sued on his note, cannot plead in compensation and payment, an account for work and labor done, where plaintiff has not agreed to pay a fixed price for the work, nor acknowledged the correctness of the account.”

Bogert vs. Egerton, 11 Ann., 73.

See also Goldman vs. Goldman & Masur, 47th Ann., 1463.

Upon the other hand, it is equally well sustained by reason, as well as authority, that, if the consideration for which n note was given thereafter fails, there can be no recovery on the note, in tiie hands of the original holder, and if it fails in part, the holder can only recover 'pro tanto, and to the extent that there has been no failure.

Kernion vs. Jumonville, 8th La., 547; Clark vs. O’Neal, 13th Ann., 381.

See, also, the cases of Barrow vs. Cazeaux, 6th La., 75, and Rucker vs. Liddell, 5th Ann., 577, being injunctions against executory process.

We are of opinion, therefore, that the plaintiffs were entitled to enjoin the 'seizure to the extent of the alleged failure in the consideration of the notes sued on, but that it was properly dissolved in other respects. C. P., 743; Hen. Digest, Vol. 1, p. 665 (2), No. 3.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided, and reversed in so far as it dissolved the injunction restraining the threatened seizure of the plaintiff’s property for the recovery of the amount of the notes sued on, to tire extent that the consideration for which said notes were given is alleged to have failed, to-wit, to the extent of the alleged value of the machinery,' which was not delivered, of the alleged cost of putting in order machinery, which, being delivered, was defective and mismatched; and of the alleged overcharge in freight; and in so far as it dismissed plaintiffs’ suit, and, in other respects that said judgment be affirmed.

It is further ordered that the case be remanded to the court a qua to be proceeded with in accordance with the views expressed in this opinion, the costs of the appeal to be paid by the defendant and appel-lee, and the costs of the lower court to await the final decision of the cause.


author: Nicholls, C. J.

text:
    No. 13,288.
    State of Louisiana vs. Leonce Duplechain.

      rt Syllabus.
    Where defendant has elicited, on cross-examination of a State witness, that he had been convicted of burglary,, the State, on re-examination, has the right to elicit from him that a new trial had been granted, and a nolle prosequi had been entered.
    Where one of the parties has succeeded in drawing out, on cross-examination, part of a transaction, the other is entitled, by re-direct examination, to draw out the whole and to elicit the explanations necessary to rebut the wrong inference and presumptions which would flow from fragmentary evidence.
    APPEAL from the Eleventh Judicial District, Parish of St. Landry. Dupre, J.

      Milton J. Ounningham, Attorney General, and JÜ. Lee Garland, District Attorney, for Plaintiff, Appellee.

      E. P. Veaeie and James J. Bcdley for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Accused was prosecuted for murder, convicted of manslaughter and sentenced to two- years imprisonment in the penitentiary. He has appealed.

The only ground of complaint urged is contained in a hill of exceptions, in which it is recited that “a witness for the prosecution, Lastie Smith, being on the stand and having testified in chief to the facts leading up to the homicide, was turned over to defendant’s counsel for examination, whereupon he elicited from the witness statements going to show that the witness had been tried and convicted for the crime of burglary committed in the house of Jean Bte. Duplechain, a brother of the accused; that on the District Attorney’s re-examining the witness, and asking him questions, he stated the conviction had been set aside, the case remanded, and the case against the witness nol pros." The defendant objected to this mode of examination on the ground that “while proof of crime is always admissible to impeach a witness, proof of the correctness of the conviction, together with all the details of said crime, are not admissible,” which objection the court overruled, assigning for reason that defendant’s counsel having sought to impeach the witness’, credit by showing a conviction of crime, the District Attorney had the right, in his re-examination of the witness, to sustain his character, by showing that although convicted, the judgment of conviction had been set aside and the case ■nol pros, and this, by way of permitting the impeached witness to make an explanation in support of his credibility, that it “is always proper to give a witness who has been impeached, either upon cross-examination, or by independent evidence, an opportunity to make any explanation he can in support of his own credibility.” A. and E. Ency. of Law, Yol. 29, page 825. <

That the witness was not permitted to minutely detail the facts, but was held only to answer questions going to show that the conviction had been set aside.

To which ruling of the court defendant reserved a bill of exceptions.

We are of the opinion that the ruling of the court, and the reasons assigned therefor, were correct.

When the State succeeds, on cross-examination of a witness, in introducing testimony of part of a transaction, which, standing alone, would work to the prejudice of the accused, the latter is entitled to show the whole transaction, or to make explanations in regard to the same, which may be necessary to rebut wrong presumptions or inferences to be drawn from the State’s testimony. 26th Southern Reporter, J21; 80 N. W., 214.

This has been frequently decided in reference to fragments of conversations or to threats or declarations of the accused sought to be urged against him. State vs. Pruett, 49th Ann., 291. The State is entitled to the benefit of the application of the same principle.

The judgment appealed from is hereby affirmed.


author: BlaNCI-iard, J.

text:
    No. 13,086.
    James M. Hennessey, Liquidator and Individually, vs. Mary G. T. Stempel, Guardian, Etc.
    Syllabus.
    1. This not being a suit for the return of a note which had peen' pledged, the prescription applicable to the acquisition of movables (acctnirenOA omisa) (C. C., 3509) does not obtain.

      2. Being an action for the recovery of moneys had and realized by the pledgees for and on account of the note pledged, over and above the sum needed to satisfy their claim against the pledgors, the prescription which operates a release from debts (liberandi causa) of ten years only applies.
    3. And those collections only are barred which were made at dates ten years before service of the citation herein.
    4. The presumption of payment resulting from the lapse of the time necessary for prescription is juris et de jure.

    APPEAL from the Civil District Court, Parish of Orleans. • — Theard, J.

      'William, 8. Benedict for Plaintiff, Appellant.

      E. Howard McQaleb for Defendant, Appellee.
   The opinion of the court was delivered by

BlaNCI-iard, J.

In this case the substantial allegations of the petition are: —

That on the 14th of August, 1884, the firm of John Hennessey & Bro., then in active business, borrowed $1500 from D. 0. McCann & Son and deposited with the latter in pledge and as collateral security a promissory note of A. Sorrel for the 'sum of $5535.

That frequently thereafter McCann & Son informed the pledgors the note of Sorrel was.in process of collection.

That McCann & Son had, on or before December 29, 1885, collected on the note $1759.50, which collection overpaid the indebtedness of Ilennessy & Bro. to them, principal and interest, leaving'a balance .due the borrowing firm of $94.83.

That, later, .to-wit :■ — in November and December, 1886, McCann & Son had collected on the note $485.40, and thereafter, on June 27, 1888, they had, without notice to petitioner or his firm, and without their knowledge or consent, sold and disposed of the note, for the balance -due thereon, for the sum of $2500, to a third person, who, subsequently, realized its full value, principal and interest, from its maker.

It is represented that knowledge of these collections and of the disposition aforesaid of the Sorrel note had come to the petitioner within three years last passed, and that the entire proceeds so collected and realized were appropriated by McCann & Son to their own use.

It is averred that both members of the firm of McCann & Son are dead, and that their heirs in possession, represented by the defendant as guardian, refuse an accounting and settlement.

The prayer of the petition is for an accounting, and, in default thereof, for judgment for the amount of the Sorrel note, principal and interest, less the sum which Hennessey & Bro. had borrowed, $1500 and interest.

Plaintiff was a member of the firm of John Hennessey & Bro. He sues individually and as liquidator.

His appointment as liquidator appears in the record, and it is worthy of remark that while the petition sets forth that the money was borrowed from McCann & 'Son on August 14, 1884, and that at that time the partnership of Hennessey & Bro. ivas in active business, the certificate of appointment of James M. Hennessey as liquidator is dated July 1, 1884, a month and a half before the $1500 was borrowed, and it would appear that John Hennessey, the senior member of the firm, was then dead, for the certificate aforesaid bears the heading' “Succession of John Hennessey”, and it is recited therein that John Hennessey is deceased.

Defendant excepted on various grounds as follows:—

1. That the petition discloses no cause of action, the Succession of David O. McCann and Charles P. McCann (who had composed the firm of D. O. McCann & Son) having long since been settled, concluded and the heirs sent into possession.

2. That plaintiff is without capacity to maintain the suit and stand in judgment.

3. That the allegations of the petition are too vague and indefinite to inform defendant of the nature of the action and enable her to prepare a defense.

4. That the action is barred by the prescriptions of three, five and ten years, which are pleaded.

Later, an exception of res judicata was pleaded, it being averred that plaintiff is estopped by reason of the accounts filed in the Succession of David O. McCann and Charles P. McCann, and the judgments rendered homologating the same. It is represented that these judgments constitute the authority of the thing adjudged and debar plaintiff from maintaining the suit, etc.

These exceptions came on for trial and a decree was entered overruling them all save that of prescription. It was ordered that the plea of prescription of ten years be maintained and plaintiff’s demand was, in consequence, “rejected with costs.”

• After an unsuccessful effort to obtain a new trial, plaintiff appeals from the judgment dismissing his action on the plea of prescription.

There was no aispeal by defendant from the judgment overruling her other exceptions. Neither has she in this court filed an answer to the appeal, suggesting or praying any amendment of the judgment appealed from.

In consequence, the only issue before us is the correctness vel non of the judgment maintaining the prescription of ten years, though in the briefs of counsel on either side all of the several exceptions are argued.

This is a suit for an accounting, and in default thereof for the value of the thing the subject of the accounting.

It is not a suit for the return, or for the recovery, of the note which had been pledged. The prescription, therefore, applicable to movables (C. C. 8509) does not obtain.

What is demanded is that a return be made of the moneys had and realized by the pledgees for and on account of the thing pledged— what is due the pledgees by the pledgors to be deducted from the amount so realized and the remainder paid over to the pledgors, or their heirs. C. C. 3170, 3172.

It is, therefore, to be considered a suit to recover moneys collected by the pledgees for account of the pledgors. The prescription applicable is that Uberandi causa, not that acquirendi causa. Such an action is prescribed by the lapse of ten years.

Taking as true the allegations of the petition, when, in December, 1885, McCann & Son collected $1759.50 on the pledged note, they realized a sum sufficient to pay and satisfy the debt due them by the firm of Hennessey & Bro., and leave a balance over. This balance belonged to the latter firm and must be considered held by McCann & Son for account of Hennessey & Bro. It was money that then became due the latter.

More than a decade having elapsed since the balance came into their hands, the demand for it now falls under'the ban of the prescription of ten years. C. C. 3544; Wagoner vs. Phillips, 22 La. Ann. 151; 17 La. Ann. 250; 16 La. Ann. 397; 15 La. Ann. 145; 34 La. Ann. 830-831; 32 La. Ann. 488.

In the latter part of 1886 McCann & Son collected on the note the further sum of $485.40. This money belonged to the pledgors of the note, and McCann & Son became indebted to them for it from that moment.

The demand for it, made more than ten years after its collection, «ornes too late and is barred by that prescription. 0. 0. 3544.

The presumption of payment resulting from the lapse of the time necessary to prescribe is juris eí de jure. 22 La. Ann. 152. C. C. 3510 does not apply to the prescription Kberandi causa. Tb. See also C. C. 3530, 3550, 3544; 3 La. Ann. IN.

On June 27, 1888, McCann & Son realized a further sum of $2500 on the pledged note and it then passed out of their hands. This money, like the former collections, belonged to the pledgors and was an indebtedness from that moment in their favor against McCann & Son. O. O. 3170, 3172.

Two days short of the prescriptible period (service of citation on defendant having been made June 25, 1898) judicial demand is made for it against the heirs of the two members of the firm of McCann & Son, both now deceased.

This demand is timely and the prescription of ten years as to'this $2500, at least, is not applicable. C. C. 3518, 3544, 3551, 3552; Prudhomme vs. Plauche, 27 La. Ann. 133.

We have, then, a case where, several sums of money at different dates came into the hands of defendants or those from whom they derive the quality of heirship. These sums were obtained (1) by collections had on account of a note pledged for a loan, and (2) by making a transfer or sale to another of the remainder of the note.

The funds so derived pertained to the pledgors of the note, subject to the right of the pledgees to pay themselves the anterior indebtedness due them by the pledgors. This being done, they owed the duty of returning the surplus to the owners of the thing pledged. C. O. 3170, 3172.

They failed in the performance of this duty, and'the owners'permitted more than ten years to elapse, as to part of the collections, before suing to recover, and, as to another part, brought their suit just within the ten years.

Plaintiffs are entitled to the accounting, but we hold the action barred as to the collections made on the note at dates beyond ten years from the service of citation.

Out of these collections so barred, however, is to be considered paid and settled the loan, $1500 and interest, contracted by Hennessey & Rro. from McCann & Son in 1884. ,

It follows that the judgment of the trial court sustaining* defendant’s plea of prescription of ten years in its entirety, is erroneous. It should have sustained the plea in part and overruled it in part.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from, in so far as it sustains defendant’s plea of prescription of ten years as against the demand of the plaintiff for the recovery of the collections made on the note pledged by John Hennessey £ Bro. to D. 0. McCann & Son at dates more than ten years prior to this suit, be affirmed, and that in all other respects the said judgment is avoided and reversed, and it is ordered that this suit be reinstated on the dccliet of the court a qua and be proceeded with according to the views herein set forth and the law — costs of both courts herein to be borne by defendants and appellees.

NtdioiiLfa, C. J., dissents, holding no part of the demand prescribed.


author: Watkins, J. Blanchard, L

text:
    No. 13,106.
    Miss Josephine Beugnot vs. Henry Tremoulet.
    Syllabus.
    On Motion to Dismiss.
    Finding upon an examination of the record, and the reasons for Judgment of the court below, that there is an amount in controversy between the parties, within the Jurisdictional limit of the Constitution, a motion to dismiss the appeal must be denied.
    On the Merits.
    1. The general rule is that the contract of mandate is gratuitous, but in a spirit of Justice and where the services are onerous remuneration has, sometimes, been allowed.
    2. Courts may infer agreement as to remuneration from the nature of the employment and the relation of the parties.
    3. But this doctrine should be applied with caution, to the end that it be not subversive of the plain declaration of the written law.

      4. An agent having used his principal’s funds in his own affairs is answerable for Interest on the same.

      5. ’ Where the remanding of a case is made necessary by reason of the deficiencies of allegation in plaintiff’s petition, or mistaken relief sought in the prayer, the further costs in the court a qua should be at his expense.
    PPEAL from the Civil District Court, Parish of Orleans. — Ellis,

      Solomon Wolff and John B. Upton for Plaintiff, Appellant,
    . Charles Louque for Defendant, Appellee,
   The opinion of the court on the motion to dismiss was delivered by WatkiNS, J.

On the merits, by BlanchaRD, J.

ON Motion to Dismiss Appeal.

Watkins, J.

The defendant Tremoulet has filed a motion to dismiss the appeal on the ground, that this court has not jurisdiction rations materias — claiming, that the amount in dispute is, only, $411.00, exclusive of interest — all the items demanded in the plaintiff’s petition having been admitted as correct, save the one for that sum.

This motion is resisted by the plaintiff and appellant, on the ground, that there is in contest, a sum in excess of two thousand dollars, which she claims was the amount earned by the investment of the funds by the defendant while in his hands; and which he, as her agent, failed to remit.

The plaintiff resides in Wiesbaden, Germany, and alleges that the defendant is justly and legally indebted to her, in the sum of $17,-779.64, with interest as hereinafter prayed for, for this, to-wit:

That during the minority of your petitioner, the defendant herein, acting as the agent and attorney in fact of Mrs. Julie Beugnot, mother of the petitioner and her duly appointed tutrix, collected for petitioner’s account from the Succession of Dr. J. F. Beugnot, petitioner’s paternal grandfather, the following sums, to-wit:

July 10th, 188S .$2,000' 00

January 11th, 1880...10,223 53;

August 4th, 1891 . 127 78'

July 6th, 1895 . 2,918 33.

Total......$15,269 64

That of said sum he has paid to your petitioner’s tutrix, On July 16th, 1888 ...$1,000 00

Leaving the said defendant indebted to your-petitioner in the sum of.... .$14,269 64

That said defendant has further collected for your petitioner seven installments of one hundred and seventy dollars each, or a total of $1100, as follows:

The succession of J. F. Eeugnot held a note which had not yet matured, the interest thereon.was collected annually, and the share of your petitioner in said interest was collected as aforesaid by the defendant: but of the said amount of $1190, after considerable delay, he remitted to your petitioxicr $680, leaving him indebted to her in the sum of $510 on this item.

Your petitioner further avers, that defendant herein, at various times sent your petitioner certain remittances, as follows:

August 28th, 1889 .$ 980 00

August 26th, 1890 . 1,000 00

September 3rd, 1891 . 1,000 00

September 27th, 1892 . 500 00

February 7th, 1893 . 500 00

February 16th, 1894 . 500 00

September 1st, 1894 . 500 00

March 10th, 1897 . 1,000 00

Total.$5,980 00

That said remittances were forwarded to your petitioner as the interest earned on the capital collected by and on deposit with the defendant, which said annual interest earnings were, by defendant, declared to be four thousand marks in German money, or, approximately, one thousand dollars in money of the United States.

“Under said statement of the defendant, your petitioner is, yet, entitled to the following instalments in interest:

“For the years 1892, 1893, $500 eacb.$1,000 00

“For the years 1895, 1896, $1,000 each.$2,000 00

“Total due for interest earned.$3,000 00

“Now your petitoner avers, that the sum due your petitioner by the “ defendant was repeatedly demanded from him, hut the request was “ answered by the said defendant with representations as to the c'om- “ paratively large income which the capital earned, if the deposit was “ left with the defendant, and it was under such conditions only that “ the same were left with him.”

Petitioner represents, that since she has become of age, and her tutrix, during her minority, frequently demanded settlements of the defendant without avail, and her prayer is for judgment against him for the amount first mentioned.

The defendant for answer pleads the general denial, and annexes thereto a detailed statement of the amounts received by him, and payments made, aggregating in amount of receipts, $16,45.9.64, and payments $9,672.43, leaving a balance due plaintiff of $7,787.21.

Immediately thereafter, the plaintiff filed a motion for judgment pro confesso against the defendant for the sum of $7,787.21, as having been admitted, “postponing the settlement and adjudication of all “ matters and issues therein, all questions of interest and income on “ capital on default, and all other matters of whatever nature in dis- “ pute herein between the parties, until such time as the suit will come “ before the court in regular order of the docket.”

And, to this effect, the judge a quo rendered and signed a judgment.

In his reasons for judgment, the judge a quo makes use of this statement:

“This left no issue to be tried, except defendant’s charge for 2% "per cent, commission, say $411.49, for collection and trouble, and “ plaintiff’s demand for interest.

“The correctness of all the items of defendant’s account is admitted “ by the plaintiff. Defendant’s right- to commission and plaintiff’s “ right to interest are the sole issues. It is admitted if defendant is' “ entitled to commission at all, that $411.49, the sum charged, is the “ proper amount.”

In his reasons for judgment, the judge a quo takes up these two items separately, and disposes of them.

£n discussing the latter item, the judge says:

“The interest collected was remitted as received, as the correspond- “ once shows; and sums from the capital were, also, remitted from “ time to time, in response to the call for plaintiff’s schooling, to as- “ sist her in her contemplated marriage, etc.”

And, after making a further summary of the evidence, he further says:—

“If the account rendered be true, and this is admitted by plaintiff “ (except that she denies commissions and claims interest), then his “ tender relieved him from the demand, and put the plaintiff in mora, “ as I have found that defendant was not in default, previously; he “ owed no interest, and tendered plaintiff all that she was entitled to, “ unless it is shown that he used her capital for Ms own advantage.

“The question, therefore, arises, did defendant use plaintiff’s money “ for his own use, or speculate upon it?”

After making a further statement of facts, the judge concludes his reasons, thus:—

“I-Te ha's paid plaintiff all that he owed her, and he still holds the “ bonds; they were his bonds, and not plaintiff’s.

“He bought them and held them to secure the plaintiff, and not as “her property.

“She does not claini the bonds.

“He had ample funds of his own to’ buy them.

“Their value or earnings are of no moment here.

“During jris management of plaintiff’s affairs, he remitted to her “ mother for plaintiff’s account, $7,758.04, etc.”

On this statement he concludes that the defendant is not indebted to plaintiff for the amount claimed.

On this condition of affairs as presented in the record, and on the reasons of the judge a quo for .his judgment, the plaintiff’s appeal is predicated; and, in our opinion, she is entitled to a hearing before this court, because there seems to be still in contest an amount within the jurisdiction of this court.

Therefore, the motion to dismiss is denied.

Ou the Merits.

Blanchard, L

Plaintiff was the beneficiary of a certain interest in the succession of her grand-father, Dr. J. F. Beugnot, who died in New Orleans in 1887.

She was a minor and resided with her widowed mother in Germany.

The mother acted as her tutrix, though not formally qualified as such.

Defendant, by appointment of the mother, became the agent in America of the plaintiff, to act for her, represent her, collect, receive and receipt for the moneys coming to her from her grandfather’s estate.

This agency had continued about eleven years when the present action was brought.

By the laws of Germany the plaintiff did not reach her majority until she had attained the age of 25 years. Having been born in 1872, she did not become of age until June, 1897. This suit was filed in April, 1898.

No dispute as to the authority of the mother to appoint defendant agent aforesaid is raised.

Defendant, beginning with July 10, 1888, collected from time to time various sums for account of the plaintiff, and made to her and her mother various remittances extending through the period of his agency.

After attaining her majority, the plaintiff asked an accounting and settlement at the hands of.the defendant. The latter promptly tendered his account, showing a balance of $7,787.21 due his principal and offered payment of same, provided a receipt in full were given him. This was declined, the plaintiff claiming a larger sum was due her than what the agent’s account showed.

This suit followed.

It proceeds upon the hypothesis that the remittances made from time to time by defendant to his principals in Germany represented the earnings of the capital belonging to the plaintiff in the hands of defendant, realized by him for her account from the succession of her grand-father, that but a small part of the aggregate sum so remitted is chargeable against the capital itself, and that, in consequence, nearly the whole of the capital or principal amount so collected from her grand-father’s estate is due her — being a sum largely in excess of thatjtendered by defendant.

For answer defendant denies that the remittances he had made represented the earnings of the funds he held for account of his principal, annexed a detailed statement of the amounts received by Him and payments made, showing a balance due the plaintiff of $7,-787.21, and announced his willingness now, as in the past, to pay the same over to her on obtaining his discharge.

Following the filing of this answer and its annexed statement, counsel for plaintiff moved for judgment for the $7,787.21, the balance admitted to be due. In this connection it asked that the settlement and adjudication of all matters at issue in this suit, all questions of interest and income on capital, be postponed until such time as the cause might come before the court in due course for trial.

This motion was allowed, defendant was adjudged to pay over to plaintiff the sum he admitted to be due her, and other matters at issue were ordered postponed as prayed for.

This ruling was proper and is sustained by precedent. Gilly vs. Roumieu, 11 La. Ann. 746; Second Municipality vs. Corning, 4 La. Ann. 407; Parsons vs. Suares, 9 La. 411; Skinner vs. Dameron, 5 Robinson 447; Small vs. Zacharie, 4 R. 145.

Defendant paid the amount.

Plaintiff does not dispute any of the items appearing upon defendant’s account save one of $411.49, being a charge of 2% per cent, commission on $16,459.64 collected.

This, she contends, is not legally due defendant.

After payment of the $7,787.21 aforesaid, nothing was left in dispute between the parties, to be adjudicated on the trial of the case, except the item for commissions, and the claim set up by plaintiff in her petition that the remittances made to her from time to time-were earnings on the investment of her capital in the hands of defendant.

The decision below was against plaintiff on both these issues, and she appeals.

I.

The general rule is that the contract of mandate is gratuitous. The codal provision is that it is gratuitous unless there has been a contrary agreement. C. 0. 2991. But in a spirit of justice and where the services are onerous, responsible and toilsome the/Sourt has, sometimes, allowed remuneration to the mandatary. Packet Co. vs. Brown, 36th La. Ann. 144; Waterman vs. Gibson, 5th La. Ann. 672.

In the latter case the court held it was not necessary for an agent to establish an express agreement that he should have a pecuniary remuneration for his services, and that courts may infer such agreement from the nature of the employment and th'e relation of the parties. *

Tins ruling was approved in Succession of Krekeler, 44th La. Ann. 726, where it was, in effect, held that it is of the nature, hut not of the essence, of mandate that it be gratuitous, and that without express agreement- courts may infer an implied contract to pay from the character of the services rendered and the relation of the parties.

See also to the same effect Decoux’s Heirs vs. Plantevignes, 10 La. 508; Navigation Co. vs. Collins, 12 La. Ann. 120; Succession of Fowler, 7 La. Ann. 211.

While the rule announced in these decisions merits our re-affirmance, and is, we think, applicable to the instant case and 'determinative of the question at issue in favor of defendant, it should always be applied guardedly — with caution — to the end that it be not subversive of the plain declaration of the written law.

Here, the agency of defendant extended through many years; the principal was in a distant country beyond the seas; much correspondence was necessary and was had; there was the employment of counsel and the superintendence of litigation which was pressed to a highly successful issue; as the result considerable sums of money passed into the hands of the agent; remittances were necessary and were made; and the residue carefully preserved against the time when the minor should become of age, to be then handed over to her. All this involved no little labor, time, thought and responsibility, and from- the same may reasonably be inferred a tácit understanding, an implied contract, to reimburse defendant.

The court a qua did not err in allowing him compensation for his services, arrived at by a calculation of 2% per cent, upon the funds which passed into his hands, and which he administered.

II.

Plaintiff misjudged the nature of her demand against defendant. Her petition sets forth the relationship existing between her and him and drew therefrom certain conclusions. The testimony offered at the trial does not warrant these conclusions. She is-not entitled to a judgment for specific sums as earnings, apart from interest, on her capital in his hands. Proof is lacking to justify ¡this. There was no direct investment of her funds to earn the amounts claimed. The funds which came into -the agent’s hands were not specifically invested either in her name, or his. They were mingled with his own funds and thus lost their individuality. He used his own money and that of plaintiff thus mingled as a common fund in the purchase of bonds, stocks, etc. The purchases were all made in his own name and for his sole account. He testifies he bought bonds so that when his principal demanded her own he could readily turn them into cash to meet the demand.

The District Judge was right in holding plaintiff not entitled to judgment for any sum or sums as claimed in her petition.

But having used his principal’s funds in his own affairs he must be held answerable to her for interest on the same.

“The attorney,” says 0. C. 3015, “is answerable for the interest of any sum of money he has employed to his own use, from the time he has so employed it”.

And this is the demand which plaintiff, under the circumstances here disclosed, should have made in her petition and the prayer thereof.

Cases may arise where an agent should perhaps be taxed the highest rate of conventional interest on the use he makes of his principal’s funds, and there is authority for the same. 41 La. Ann. 386.

But we do not regard this suph a case.

This agent should be called upon to pay only the legal rate of interest (five per cent, per annum) upon the funds of his principal which came into his hands, and this according to the rule laid down in O. C. 2164 — that of partial payments. Succession of Coco, 32nd La. Ann. 333.

This interest should not be computed beyond the date of the payment by defendant of the amount awarded against him by the trial court, as hereinbefore explained. Whatever sum he then owed as interest at .five per cent., according to the rule of partial payments, should be given against him and ho more, and interest on'that interest is not allowable.

We would, perhaps, he justified (Smith vs. Cocoran, 7 La. 46; Beach’s Modern Equity Practice, Sec. 91), though that is not clear, in holding plaintiff entitled to a decree of this kind, notwithstanding the.. character of her demand and the nature of the prayer of her petition. But we deem it advisable to remand the case, both that plaintiff might amend her pleadings to present her demand in proper form as herein set forth, and in order that she may there, contradictorily with defendant, fix ±be amounts and dates on which and from which interest is to be allowed, credits given, etc. In other words, to have adjusted there the accounts between them on the basis herein determined.

It is well settled that the court will, in its discretion, remand causes when the interests of justice require it.

Since the remanding of the case is made necessary, in large part, by reason of the deficiencies of allegation in plaintiff’s petition, and mistaken relief sought in the prayer, the further costs in the court a qua should be at her expense.

For these reasons, it is ordered and decreed that the judgment appealed from, in so far as it allows defendant the charge of $411.49, being 2% per cent, commissions on $16,459.64 collected and administered by him, be affirmed, and in other respects the said judgment be reversed and the case remanded to be proceeded with according to the views herein presented and the law — costs of appeal to be taxed against defendant and appellee.

Monroe, J., concurs in the decree.

Rehearing refused.


author: BlaNCI-iakd, J.

text:
    No. 13,291.
    State of Louisiana vs. Louis Lejeune et als.
    n DYLLABUS.
    1. The absence of a co-defendant who has not been summoned as a witness is no ground for continuance.
    2. Bven if error is committed in refusing a continuance because of the absence of a witness, such error is not ground for reversal when the absent witness subsequently appears and testifies in the ease.
    3. Evidence claimed to be newly discovered, is not ground for new trial when such evidence is merely cumulative.
    4 where from' its nature and the' relation of the witnesses to the parties accused, and the length of time the indictment has been' pending, the claim of newly discovered evidence appears highly improbable, the ruling denying the motion for'new trial will not be disturbed.
    5. Nor will it be disturbed when the evidence itself is so weak that it, likely, would not have afljected the result.
    APPEAL from the Eleventh Judicial District, Parish of St. T,a.n-dry — -Dupre, J-.

      Milion J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      O. F, Garland for Defendant, Appellant.
   The opinion of the court was delivered by

BlaNCI-iakd, J.

Louis Lejeune, Gerozixne Lejeune, Silvin Moreau and Joseph Moreau were jointly indicted for the larceny of three hogs.

The three latter were tried together, with the result that the District Attorney abandoned the case against Joseph Moreau, and as to him, under instructions from the court, the jury returned a verdict of not guilty; as to the other two, a verdict of guilty was returned.

From the verdict and the sentence thereunder of one year’s imprisonment at hard labor, both defendants appeal.

The questions for review are presented in two bills of 'exception.

The first relates to the ruling of the court refusing postponement of the trial of the cause because of the absence of a witness. The Judge states in the bill, as reasons for his ruling, (1) the accused had not summoned the absent witness; (2) the case having gone over until the next day, the witness in question appeared and testified in the case.

There is no error here.

The second bill relates to the ruling of the Judge denying the motion for new trial. The application for new trial was predicated on the ground of newly discovered evidence. Testimony in support of the motion was taken, reduced to writing and is found in the record. Only one of the witnesses mentioned in the application was produced, but two other persons not mentioned therein as witnesses were called to the stand by the accused and permitted to testify.

As we are called upon to judge this evidence in order to determine whether or not there was error in the ruling of the trial court in refusing the application for new trial predicated upon the same, we are constrained to say, as did the District Judge, it is found to be too weak and unsatisfactory to have, likely, changed -^he result of the jury’s finding.

Besides this, the Judge, in his reasons for overruling the motion, says the evidence would at best be only cumulative, since the father of one of the accused testified on the trial to the very facts' sought to be established by the newly discovered evidence. And he adds that he did not believe the evidence was “newly” discovered — the indictment having- been returned at a previous term of the court months before. The evidence itself appears, intrinsically, considering- the intimacy of the witnesses with the parties accused of the theft, to bear out this disbelief of the Judge.

Newly discovered evidence merely cumulative is not ground for a new trial. State vs. Bailey, 50th La. Ann. 536.

No error in the ruling is found.

Judgment affirmed.