text:
    No. 12,141.
    Orr & Laubenheimer Company, Limited, vs. John Wilson & Co.
    Ship agents and fruit dealers having contracted for the lease of a vessel for use in their business, at a fixed price and for a definite term, deliverable about the 30th of July, 1891, are not at liberty to recede from their engagement at will, and decline to accept delivery, if tendered seasonably; and, having declined to accept delivery of the vessel when formally tendered to them on the 29th of July, 1891, they have become bound to the plaintiff as lessors in the full amount of the price stipulated in the contract.
    An effort on the part of the lessors, subsequently to the defendants’ default, to use the vessel so as to reduce their damages to a minimum, can not be viewed as an acquiescence in their abandonment of their contract, which defeats plaintiffs’ recovery.
    A PPEAL from the Civil District Court for the Parish of Orleaus. King, .7.

      Bernard Titche for Plaintiff, Appellant.

      Bart & Kernan and U. Marinoni, Jr., for Defendants, Appellees.
    Argued and submitted June 8, 1896.
    Opinion handed down June 15, 1896.
    Decree amended and rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages for the breach of a •charter party, and plaintiff demands of the defendant the sum of two thousand one hundred and eighty-two dollars, as the compensation due therefor.

From a judgment of the court in favor of the defendant, rejecting plaintiff’s demand, it has appealed.

The case of the plaintiff, as stated in its petition, is that in the month of July, 1894, it entered into a contract with defendant, whereby it agreed to lease or charter to the latter, who agreed to accept and pay for same, a certain steamship named Sunniva, for the period of one month, at the rate of four hundred and fifty pounds ¡sterling, which are of the equivalent value of two thousand one hundred and eighty-two dollars and fifty cents in American currency.

That said contract was made by correspondence between the parties in the form of telegraphic dispatches — the plaintiff having carried on its correspondence through W. W. Hurlburt & Co., a firm of ship brokers of New York, who acted in the capacity of agents for the defendants, for whom the said firm had power and authority to contract.

That it attaches to its petition all the original telegrams which were received during the course of said correspondence, and copies of all those sent to and received by W. W. Hurlburt & Co. — the originals of the latter being in defendant’s possession — as the evidence of the aforesaid contract.

That said vessel, Sunniva, was to be ready for the use of the defendants, according to the terms of the aforesaid agreement, “ about the 30th of July, 1894, and that on the 29th of July, 1894, the said vessel being then in the port of Mobile, Ala., and ready for delivery,” it was tendered to the defendants, and by them refused. That by said refusal and declination of said vessel defendants violated their contract and bound themselves for the aforesaid contract price, of its lease, which it is entitled to recover.

The prayer of the petitioner is for judgment conformably to the foregoing allegations against the firm of John Wilson & Co. and the. individual members thereof in solido.

Defendants excepted that proper parties defendant had not been made — insisting that, if any contract had been made such as the plaintiff describes, it was made and entered into “ by plaintiff with the Bluefields Banana Company,” and that if any action they have,, it is against the latter, and not against the exceptors.

This exception was, by consent, referred to the merits.

Por answer the defendants aver that their business was that of ship brokers and agents and fruit importers, and in said capacities, the agents of the Bluefields Banana Company, a corporation organized and doing business at Galveston, Texas, and at Bluefields,. Nicaragua and which has for its objects, among others, the operating and chartering of vessels from various points to Bluefields.

That while admitting the genuineness of the various telegrams plaintiff has declared upon, they aver that the contract represented therein for the charter of any vessel was for the Bluefields Banana. Company, and that the plaintiff was well acquainted with the fact of' this agency, and with the fact that John Wilson, whose name appears in said telegram, is the first vice president of the said com-pany, and that the transaction was for the use and benefit thereof.

“That whatever correspondence or transactions occurred with petitioners were made with John Wilson in his capacity of agent and first vice president of said company, and that any right of action, if any petitioners-have, should be against the said Bluefields Banana Company, and not your defendants.”

But in the alternative that the court should hold that they did enter into said contract, they aver that desiring to run a steamship from Bluefields, Nicaragua, to Mobile, Ala., for account of the Blue-fields Banana Company in connection with another steamship, they opened negotiations with W. W. Hurlburt & Co., a firm of ship brokers in New York City, for the purpose of chartering a vessel. That thé main object of these negotiations was to obtain a vessel immediately, and this fact was brought to the attention of plaintiffs, as well as of Hurlburt & Co., at the opening of said negotiations:

They aver that the steamship Sunniva was offered by said W. W. Hurlburt & Co., and accepted by the defendants on the above condition.

“That subsequently it was distinctly understood and agreed between plaintiff and defendants herein, that the said steamship Sunniva would be at Mobile on the 24th or 25th of July, as otherwise your defendants would not take her, and that this condition in the contract was fully understood and agreed to.

“ That when the time agreed on had arrived, your defendants, were at Mobile, ready and willing to perform their contract, and. charter or lease said vessel; but that plaintiff neglected to perform their share of the contract and have the vessel delivered on time. That John Wilson, one of your defendants herein, waited patiently at Mobile until the 29th; and, the boat not arriving, notified plaintiff that the vessel could no longer be leased or chartered, as (they) had failed to perform their obligation, and defendants could no-longer use the said vessel.”

They specially “ deny that plaintiffs have suffered any damages by-reason of the dissolution of said contract, or that they ai e liahle for the payment of the charter of said vessel;” and they aver that plaintiff acquiesced in their refusal to take the ship, by immediately-employing her for their own account during the time she was to-have been leased, deriving a profit therefrom, and thereby releasing them.

The foregoing extracts from the pleadings leave only three questions open for our decision: (1) whether the defendants are personally bound on the contract, or charter party; (2) whether the vessel was to be ready for the use of the defendants ‘ ‘ about the 30th of July, 1894,” as claimed by the plaintiff, or on the 24th or 25th of said month, as claimed by the defendants; (3) whether the plaintiffs acquiesced in defendants’ declination to accept the vessel, and released them from their engagement by making use of the vessel during the period of the contract.

Defendamos answer having admitted the veracity of the telegrams, and averred that subsequently it was distinctly understood and agreed between plaintiff and defendants herein, that the S. S. Sunniva would be at Mobile on the 24th or 25th of July,” the contract stands •conceded to be as alleged by the plaintiff, unless it can be shown •differently by the defendants by fair preponderance of evidence.

We have appended the telegraphic correspondence, and for convenience have extracted same from plaintiff’s brief, pages five and six, viz.:

“As the telegrams together make up a written contract, and as they completely set at rest the question of the time of delivery stipulated, we quote them in full:
“ 1. Document P. A.
'“ ‘ To Orr & Laubenheimer, Mobile, Ala.:
“ ‘ Have vale. Others open as per letter. Please advise anything required. What is lowest you will accept for balance España, ■Jaederen, Sunniva.
“ ‘(Signed) W. W. Hurlburt & Oo.’
“2. Document Marked P. A., Being the Reply to P. A.
■“ ‘ ju. W. Hurlburt & Co.:
“ ‘ Jaederen 390, Sunniva 550.
“ ‘ (Signed) Orr & Laubenheimer.’
“ 3. Document P. B.
“ ‘New York, July 18, 1894.
“ ‘ To Orr & Laubenheimer, Mobile, Ala.:
“ ‘ Are offered three seventy (370) for Sunniva. Make us counter offer. As quick delivery as possible. Balance charter how long.
“ ‘ (Signed) W. W. Hurlburt & Co.’
.“ 4. Document P. B,, Being the Reply to Telegram P. B.
“ To W. W. Hurlburt & Co., New York:
“ ‘Sunniva four hundred and fifty, nothing less. One or two trips..
“ ‘ (Signed) . Orr & Laubenheimer.’
“The next telegram in the series shows that Hurlburt & Co. now-accept the price, but endeavor to obtain from Orr & Laubenheimeran agreement for an immediate delivery, namely:
“5 — Document P. C.
“‘New York, July 19, 1894.
“ ‘To Orr & Laubenheimer:
“ ‘Have closed Sunniva four hundred and fifty less address “ ‘commission. When does charter expire? Confirm immediate-. “ ‘delivery.
“ ‘ (Signed) W. W. Hurlburt & Co.’
“6 — To This Document P. C., Ts a Reply.
‘“To W. W. Hurlburt & Co.:
‘Can not deliver until about 30th. Charter expires August 22.. “ ‘Answer.
“ ‘ (Signed) Orr & Laubenheimer Co.’
“7 — Document P. D.
' “ ‘New York, July 19, 1894.
“ ‘To Orr & Laubenheimer:
‘“Closed Sunniva, Wilson two trips four hundred and fifty less. “ ‘usual address to Wilson. Please notify him when she is due.
“ * (Signed) W. W. Hurlburt & Co.’
“ On July 29, 1894, one day before the time of delivery, Orr &, Laubenheimer sent to John Wilson & Co. the following telegram: ‘ Sunniva unloading; what disposition shall we make of her? Answer quick.’
“ To this Wilson & Co. replied on July 30, 1894*, as follows:
“ ‘ To Orr & Lambenheimer, Mobile, Ala. :
“ ‘ Sunniva not arriving when wanted, we can not use her.
“ ‘ (Signed) Wilson & Co.’ ”

This is the complete correspondence, and it shows that a lease of-the Sunniva was closed on the 19th of July, at four hundred and¡ fifty pounds sterling, leaving open the question of plaintiff’s con formation of immediate delivery; but, on the same date, plaintiff wired the agents, Hurlburt & Co.: “ Can not deliver until about the 30th. * * Answer.”

Immediately the said agents replied as follows, viz.: “Closed •Sunniva. Wilson two trips four hundred and fifty less; usual address to Wilson. Please notify him when she is due.”

The plain meaning of this telegram is that the agents had accepted .and closed the lease of the Sunniva for two trips at four hundred and fifty pounds sterling — less than the original offer of five hundred and fifty pounds — and that the plaintiff was to notify defendants at their usual address “ when she was due.”

In conformity therewith plaintiff wired defendants on the 29th of July that the Sunniva was unloading at Mobile, and wanted to know what disposition they should make of her — requesting a prompt answer.

On the following day the defendants replied as follows, viz.:

Sunniva not arriving when wanted, we can not use her.”

Considering that the plaintiff had plainly stipulated that they could not deliver “ until about the thirtieth,” and that defendants’ .agents had closed the transaction on that statement, the declination of defendants was a distinct violation of their contract, which rendered them liable for the price agreed upon.

This being the case, the question arises whether defendants have .substantiated their averments that subsequently to this contract it “was distinctly understood and agreed between (them) and the plaintiff that the Sunniva would be in Mobile on the 24th or 25th of .July.”

But before considering that question it is well to state that, in our opinion, defendants’ letter to the plaintiff of date August 6, 1894, with respect to the question of their default, puts at rest the question •of their having made the contract upon their own personal account; in fact it is inferentially admitted.

The letter says:

' “Messrs. Hurlburt & Oo. write us that you will hold them responsible •because we did not take the Sunniva. When your Mr. Laubenheimer was in our office here he distinctly stated that the Sunniva would be in on the 24th or 25th sure. As you know we were desirous of getting a steamer to run in connection with the Wilson on schedule time, ihat it would have suited us to have taken her, but up to the time of the writers leaving Mobile on the 29th there was no sign of the Sunniva’s .arrival; hence the writer decided not to take the ship.”

Referring to the telegraphic correspondence, it will be discovered, that the question of “quick delivery” was discussed and finally settled between the parties on July 19. Hurlburt & Oo. say in their telegram: “ Have closed Sunniva * * * Confirm immediate delivery.” To this the plaintiff immediately replied: “Gan not deliver •until about the thirtieth.”

In fact, she did arrive at Mobile on the 29th of July, and was then being unloaded when the plaintiff wired the defendants; and it was on that very date that John Wilson, of the defendants’ firm, left .Mobile and returned to New Orleans.

But the defendants, in that letter, do not say that the original contract had been changed, so as to make the date of delivery the ,24th or 25th; but they affirm that when Mr. Laubenheimer was in their office “ he distinctly stated that the Sunniva would be in on the 24th or 25th.” That was in no sense the equivalent of an alter.ation of the original contract, for if it had been so considered by the defendants, then Mr. John Wilson need not have awaited her -arrival until the 20th, as he claims to have done. His course of conduct tends to establish the contrary view.

Not only so, but on the 31st of July, 1894, immediately after John Wilson’s return to New Orleans from Mobile, John Wilson & Oo. write a letter to the Bluefields Banana Company at Galveston, as iollows, viz.:

“ My miss onto Mobile, so far as the Sunniva is concerned, failed.
“ Up to my leaving there on the 29th, the Sunniva had not arrived. I therefore declined to take her, as it would put the Wilson .and Sunniva close together; and as I could only get the Sunniva up to the 30th (of August), Orr and Laubenheimer having an option on her, and would not say whether I could get her or not after September 1, I considered it best to look for another vessel, and have about concluded the charter of the Hiram,” etc.

This letter fully explains the situation, and more clearly evidences an intentional abandonment of their contract with the plaintiff, because the defendants could not secure the lease of the Sunniva for .September — their engagement being for the-month of August only.

And these admissions of the defendants are in perfect harmony with the testimony of the plaintiff’s witnesses.

We are of opinion that plaintiffs have clearly made out their case and are entitled to recover of the defendants the full amount of their contract. For it is clearly proven, as well as admitted by the defendants, that the vessel was not deliverable under the original agreement until about the 30th of July, 1894; and the proof shows, that she was being unloaded at the port of Mobile on the 29th of July, 1894, and was on that date tendered to the defendants and by them declined. And it is not established by the evidence that any subsequent change was made in the contract.

It is admitted by plaintiff that after the vessel had been tendered to the defendants and declined, that it put the vessel into service on their own account and operated her a part of the time, using an effort, as it had the right to do, to reduce defendants’ damages to a minimum, but that said ventures resulted in a further loss. We do-not regard that action as in any sense an acquiescence in defendants’ violation of their contract. The judgment appealed from must, be reversed.

It is therefore ordered, adjudged and decreed that the judgment, appealed from be annulled and reversed; and it is now ordered and decreed that the plaintiff do have and recover of and from the defendants, John Wilson & Oo., and from the individual members thereof in solido, the sum of two thousand one hundred and eighty dollars and fifty cents, with legal interest from the 31st of July, 1894, and all costs of both courts.

On Application for Rehearing.

Our attention has been called to the fact that our decree is directed against the defendants, John Wilson & Oo., and the individual members thereof without enumerating them, and as their names appear of record, it has been suggested, on behalf of plaintiffs and appellants’ counsel, that the decree be altered so as to conform thereto without granting a rehearing.

It is therefore ordered adjudged and decreed that our original decree be so amended as to read as follows, viz.:

It is therefore adjudged and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that the plaintiffs and appellants do have and recover of and from the defendants, John Wilson & Oo., and from the individual members thereof, viz.: Luigi Del ’Orto, the succession of John Wilson, Sr., deceased, and John Wilson, Jr., Virginia L. Wilson and Cora B. Wilson, executors of John Wilson, Sr., deceased, in solido, the sum of two thousand one hundred and eighty dollars and fifty-one cents, with legal interest from the 31st of July, 1894, and all costs of both courts.

It is finally ordered and decreed that as thus amended, our original decree remain undisturbed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,029.
    Standard Cotton Seed Oil Company vs. Peter Matheson.
    A party having entered into a contract to furnish to another, at stated periods within a specified time, a given sum of money for the purpose of enabling the latter to purchase for the former cotton seed, the former has a right to look to them for the reimbursement of his outlay, as well as to rely upon them to recruit and operate his business.
    In case the latter shall decline to carry his contract to completion, and threaten to dispose of the seed he has purchased in pursuance of his agreement, because the former declines to pay his drafts after he has already overdrawn his contract, this act comes within the purview of the law applicable to fraudulent intent as justifying an attachment.
    APPEAL from the Seventh Judicial District Court for the Parish of East Carroll. Montgomery, J.

      Percy Roberts and Gus. A. Breaux for Plaintiff, Appellant.

      Thorpe <& Barber and Clifton F. Davis for Defendant, Appellee.
    Argued and submitted January 25, 1896.
    Opinion handed down February 10, 1896.
    Rehearing granted April 20, 1896.
    Argued and submitted on rehearing June 2, 1896.
    Opinion handed down June 25, 1896.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

Defendant and appellee moves to dismiss the plaintiff’s suspensive appeal, because the surety on the appeal bond, the American Surety Company, of New York, a foreign corporation, “ is insufficient in law ” because said company became surety under and by virtue of Act 41 of 1894, entitled “An act to authorize certain corporations to become sureties upon bonds,” etc., and which is unconstitutional and void in certain particulars.

And said appellee moves to dismiss plaintiff’s devolutive appeal, for the reason that the suspensive and devolutive appeals herein were perfected on the same date by two separate appeal bonds, and that appellants are without warrant in law to bring up in one transcript two appeals taken in the alternative.

The record shows that on the 20th of June, 1895, plaintiff’s counsel, in open court, obtained from the judge an order of “ suspensive and devolutive appeal ” upon the plaintiff “ giving bond as fixed by law for a suspensive appeal, and in the sum of one hundred dollars for the devolutive appeal.”

Thereafter, the plaintiff furnished to the Clerk of the Court two separate bonds of appeal — one devolutive and the other suspensive— bearing same date of execution and approval, in exact conformity "with the order of appeal.

We entertain no doubt of the validity of the two appeals, though granted in one order by the court — the judge having granted both the suspensive and devolutive appeals. It is of no consequence that the appellant executed, contemporaneously, two appeal bonds. It was the better practice to thus preserve the identity and duality of the appeal. The order of court is the foundation of the appeal. Only •one transcript is necessary, there being but one decree. Succession of Touzanne, 36 An. 420.

On the second ground of the motion counsel’s argument is, that, as matter of law, a corporation can not become surety on an appeal bond, not possessing the essential faculty of a judicial surety in the sense of the Code; and that the statute declaring a corporation to be •a competent surety is unconstitutional and void, and that plaintiff’s appeal must be dismissed for the want of a competent surety.

A judicial surety must possess the qualifications required by R. C. C. 3041 — that is to say, he must be “ a person able to contract.” R. C. C. 3064.

The Code also declares'“ that a corporation is an intellectual body created by law,” etc. R. C. C. 427.

. “ Corporations are intellectual beings different and distinct from nil the persons who compose them.” R. C. C. 435.

Ib declares further that “ corporations legally established are substituted for persons * * * they can make valid contracts and .obligate others, and obligate themselves toward others,” etc. R. C. C. 433.

It does not readily appear that the Code, by the use of the term persons, has necessarily excluded corporations from the privilege of making a binding contract of suretyship, if the same be permitted by the terms of their charters.

With regard to the domicile of the judicial surety, fhe Oode says:

“When surety is tendered of persons residing out of the parish, the judge alone shall pass on the sufficiency thereof,” etc. R. C. C. 3042.

And it further declares that “all actions against the sureties ■aforesaid may be instituted in the court having original jurisdiction of the subject matter; and the parties thereto, when legally cited, sh?ll be subject to the jurisdiction of such court.” Id.

There is, therefore, no serious question as to the domicile of the .surety, and none as to the solvency.

(a) The charge of uneonstitutionality of the law is, that—

1. The object of the act being to amend the articles of the Code -relative to the qualifications of sureties on judicial bonds, it contravenes Art. 29 of the Constitution, which declares that “every law •* * * shall embrace but one object, and that be expressed in its .title.”

The title of the statute is as follows, viz.:

“An act to authorize certain corporations to become surety upon bonds required to be furnished by law,” etc.

This title indicates that the statute following will make provision •for certain corporations to become judicial sureties, and such provisions may operate as an amendment of the Civil Oode in that respect; but we think the enactment of a statute, such as the title imports, comes clearly within the competency of the Legislature.

On the subject “ of repeal of laws” the Code says:

“Laws may be repealed either entirely or partially by other laws” (R. C. C. 2).
“ The repeal is either express or implied. It is express when it -is literally declared by a subsequent law; it is implied when the law .contains provisions contrary to or irreconcilable with those of the former law” (R. C. C. 23).

That is the apparent result of the enactment in question if, as the defendant’s contention is, the Code precludes a corporation from becoming a judicial surety.

In our opinion the title of the act clearly states the object of the law.

(6) The second charge of unconstitutionality is that the act contravenes Art. 46 of the Constitution, in that it grants the privilege of becoming surety to certain kinds of corporations exclusively, and excludes all others therefrom; the argument of defendant’s counsel being “ that this is special legislation purporting to give exclusive privileges to a particular group of corporations, which are prohibited to all corporations not within that particular group.”

Counsel, then, in the elaboration of the foregoing objection, submits :

“Moreover, Act 41 of 1894 especially grants to foreign guarantee corporations having no property within this State the capacity of suretyship, which is enjoyed neither by other corporations in the State nor by private citizens; even a home guarantee corporation is not admitted to suretyship unless it has on deposit with the State Auditor of Public Accounts assets worth one hundred thousand dollars, nor can private citizens be admitted to suretyship on legal bonds unless they have property within the State. Indeed, this statute attempts as rank a preference as did that of the California Legislature, referred to by Judge Cooley, which, under pretence of enacting a Sunday law, forbade bakers to bake bread on Sunday.” Cooley’s Const. Lim., 154 N.; Ex parte Westerfield, 55 Cal. 550; 36 Am. Rep. 47.

Article 46 of the Constitution declares that the General Assembly “ shall not pass any local or special law” upon the following subjects; and one among the number is that of “granting to any corporation, association or individual, any special or exclusive right, privilege or immunity.”

But the act in question is not a local or special law.

It declares “ that hereafter any corporation duly incorporated under the laws of this or any other State of the United States for the purpose of transacting the business of guarateeing the fidelity of persons holding places of public or private trust; guaranteeing the performance of contracts other than in insurance policies and executing and guaranteeing bonds, or undertakings required, or permitted in actions or proceedings by law allowed,” etc.

It is a general law upon a particuliar subject and embraces corporations which have organized with a view to that subject.

This objection is not well grounded.

The next objection is that the statute contravenes the two hundred and thirty-fifth article of the Constitution, which provides that “the exercise of the police power of the State shall never be abridged, nor so construed as to permit corporations to conduct their business in such a manner as to infringe the equal rights of individuals or the general well being of the State.”

The argument of counsel on this proposition is unique, but, in our conception, it is unsound.

We quote the following from their brief (pp. 9 and 10), to-wit:

“ The police power of the State is an attribute of the widest reach, and all attempts to circumscribe it by definitions and formuUe have failed. It embraces not only governmental acts which bear upon the lives, liberties, health and good order of the governed, but also all such as affect the value, security, availability and use of the property of individuals. An exercise of the power in this latter sense; or its legislative construction by enactment, which has the effect of permitting corporations to conduct their business in such a manner as to infringe the equal rights of individuals to the possession, security and utility of their property, is obnoxious to the article of the Constitution.
“ A definitive judgment is undoubtedly property to him in whose favor it is given, as well as the availability, security and control of the judgment. It is the equal right of individuals to have this property protected and secured by the suretyship of a man or woman residing within the jurisdiction of the court granting the judgment and having sufficient property within the State, whenever the control and use and enforcement of the judgment are arrested by suspensive appeal (R. C. C., Art. 3042; C. P., Art. 575).
“The Act of 1894 permits guarantee corporations so to conduct their business as to infringe this equal right of individuals, since it admits them to legal suretyship, though they be neither men nor women, and they be neither domiciled in the State nor own property therein; and the individual whose judgment is arrested by such suretyship suffers an infringement of the equal rights of all individuals, in such circumstances, to the benefit of security domestic both as to person and property.”

We fail to discover anything in the statute which trenches, or purports to trench, upon the police power of the State; nor is it clearly pointed out in what manner the statute permits the corporations therein mentioned to so conduct their business as to infringe the equal rights of other corporations or individuals.

We understand that the defendant and appellee, as well as every other litigant, has the right to require that a surety shall possess property situated within the State to satisfy the exigencies of the case; but the law does not require that he shall reside in any specified locality. For the moment the person who, or corporation which, becomes surety signs the judicial obligation, he submits himself to the jurisdiction of that court pro hao vice. R. C. C. 3042.

Hence there is no foundation for this charge of unconstitutionality of the law, in this respect.

We have examined the grounds of the motion to dismiss with care, and have reached the conclusion that they are not well taken.

Therefore the motion to dismiss appeal is overruled.

On the Merits.

On the 7th of November, 1893, the plaintiff commenced proceedings by attachment, which was subsequently dissolved by the Judge of the District Court, because of certain supposed irregularities in the proceedings; but on appeal to this court that judgment was set aside, the attachment reinstated and the cause remanded for further-proceedings.

Since the cause was remanded it was tried by a jury, who ren - dered a verdict in favor of the defendant for seven thousand five hundred and eighty-four dollars as actual damages sustained in the wrongful issuance of the writ, and they at the same time gave judgment in favor of the plaintiff for the sum of two thousand seven hundred and fifty-six dollars and twenty-three cents, thus giving the defendant judgment for a'n approximate balance of four thousand' eight hundred and twenty-eight dollars and eleven cents over the-amount given to the plaintiff.

From that judgment the plaintiff has appealed.

For a succinct statement of the case see case of same title, 47 An. 710.

Suit is brought on an open account for about the sum of two-thousand nine hundred dollars, for cash advanced to the defendant* and, as a collateral security for which, the defendant executed his promissory note for two thousand five hundred dollars, payable at a future date, and secured same by special mortgage.

The attachment proceeds upon the theory that the defendant had mortgaged, assigned or disposed of, or was about to mortgage, assign or dispose of his property, or some part thereof, with intent to defraud his creditors. The defendant having, in his motion to dissolve the attachment on technical grounds, reserved the right to have the attachment dissolved, in the alternative, because the affidavit was untrue, availed himself of that reservation when the cause was remanded, and, in his answer, set up the untruthfulness of the affidavit and claimed in a reconventional demand nine thousand three hundred ond eighty-four dollars and forty cents actual damages, in addition to about four hundred dollars in the way of credits for partial payments made on account.

The two questions for consideration are: (1) Was the affidavit ' untrue when made? (2) If untrue in point of fact, to what amount has defendant been damaged?

In determining the truthfulness of plaintiff’s affidavit, the main, question is whether the defendant was guilty of fraud, either intended or accomplished, in the acts complained of as justifying a-resort to the writ.

The record shows that on the 25th of April, 1893, the defendant-executed his obligation in favor of the plaintiff, for and in consideration of an advance of two thousand five hundred dollars to be made-by it, on his drafts aggregating five hundred dollars per month,, binding himself to ship to the company “ during the season of 1893-94, four hundred tons, and as much more of good sound cotton seed,, as he ceuld buy or control, this seed to be weighed at Lake Providence by clerk of steamboat, and credited to (him) at the market-price,” etc.

Defendant’s contract further stipulates that “as security for the-payment of this advance and the delivery ” of cotton, he was to execute an act of mortgage on his ginhouse and contents, in the sum of two thousand five hundred dollars; and, in accordance with that contract, he did execute his note and mortgage for the sum of two-thousand five hundred dollars, “ for money advanced and to be advanced duiing the year 1893.”

Plaintiff’s account shows that an account was opened with the defendant by the payment of his draft for two hundred and fifty-nine dollars and forty-three cents, on the 1st of May, 1893; and that the cash advances were regularly continued, by the payment of similar drafts at similar dates, and of various amounts — the total amount aggregating two thousand nine hundred and eleven dollars and ninety-eight cents on the 25th of October, 1893, when the account was closed, and far in excess of the original amount agreed on.

It thus appears that the plaintiff fulfilled to the letter the terms of its contract, and even honored defendant’s drafts beyond the amount agreed upon, notwithstanding there occurred in the summer of 1893 a great crevasse on the banks of the Mississippi river, in the immediate vicinity of Lake Providence, where the defendant lived, and where his purchases of cotton seed were tobe made for the discharge of his contract, thus rendering performance difficult.

It also appears that in view of this situation, the plaintiff sent a representative to the defendant with the definite object of procuring the latter’s consent to a cancellation of the agreement, upon his shipping enough seed to cover the amount then due; but this proposition the defendant declined — insisting on the continuance of advances.

Realizing that defendant was drawing long after cotton had commenced to open, and cotton seed was deliverable, under his contract, without any shipment having been made, plaintiff wired him to know upon what he predicated his drafts; and to this he made reply, “against cotton seed stored away in ginhouse.” A witness for the plaintiff makes this statement on that subject, viz.:

“ I was sent by the company to see (the defendant) because he telegraphed the company that certain drafts he was drawing, and for which he had no authority to draw (were drawn) against seed he had in his warehouse, as the company advanced him the full amount they agreed (to furnish), as per contract. I was instructed by the company to say that they would not pay the draft in question, but if he would ship cotton to cover drafts, and ship the seed he had on hand, they would help him further.”

He further states, that he was directed to ascertain “why he was holding the seed, when it was understood he was to ship as the seed reached him from time to time during the season;” but the defendant “ declined to give (him) any satisfactory information of what he intended doing.”

That he made a demand upon him to comply with his contract “ (and) ship the seed on hand (and) he refused, giving as his reason that it would occasion him an extra expense to haul the seed to the landing.”

That defendant claimed to have on hand at the time about four - teen hundred sacks. That he examined them as best he could, but they were stored in such indifferent order he could not count them. That he requested defendant to allow him to examine his books, and he declined on the ground that they were not posted. That he proposed that he and defendant post the books, but this proposition was declined. That he then requested the defendant to allow him to see his gin book, so that he could estimate the quantity of seed he should have on hand, and that request was refused. The witness then stated that, from the appearance of what he saw, he supposed there were about a thousand sacks.

That the defendant said “ he would ship (plaintiff) the seed when the boats could reach his warehouse, provided we continued to pay his drafts; but if these drafts were not honored and should be returned to him he would make them good by disposing of the seed on hand.” That he “called his attention to the agreement and (the fact) that the company had more than fulfilled its part, and insisted on his shipping the seed on hand and stop talking about drafts he had no authority to draw.”

That the defendant replied “ that if the drafts were returned unhonored he would protect his friends from whom he had purchased the seed by. selling sufficient seed to cover the drafts returned.”

That he asked defendant for a bill of sale for the cotton seed on hand, and he had refused. Thathe requested of him an explanation of the expenditure of the money advanced by the plaintiff to him and to secure his agreements for the purchase of seed,” and he gave none.

The witness states that on a previous occasion he visited the defendant with reference to the crevasse and urged him to ship seed to cover the balance then due and call the contract off; that he positively declined to do so, stating that “ he could fulfil his part of the agreement notwithstanding the crevasse; that he was not held to Providence alone, and that he had funds at other points and could secure more seed than he had agreed to ship.”

Being dissatisfied with the result of his interview, the witness made a formal written protest and delivered it to the defendant in person and placed the matter in the hands of an attorney and the attachment followed a few days afterward; the-attorney having, in the meanwhile, interviewed the defendant and learned from him that he was engaged in preparing his seed for sale, and “was waiting for the seed boat of the Union Oil Company, which he expected down (the river) the following day;” also that plaintiff had quit paying his drafts and that was the reason he was going to sell his seed to the Union Oil Company.

On the contrary, the defendant, as a witness, denies that it was nis intention to sell the seed to the Union Oil Company, but states that he expected to submit to the captain of the steamboat which was operating for that company a proposition in respect to the seed. That “he was simply repiling the seed so that (he) could see what he had and be able to show what he had.” That he told Mr. Wyiy, the attorney of the plaintiff, that he felt satisfied that (he) could make arrangements to pay the Standard Oil Company what he owed them and go ahead in the.business for another company.”

While the defendant claims that he had on hand at the time eighty tons of seed, yet the sheriff’s return discloses that only about seventy tons were taken under the writ of attachment, and the value of same was only six hundred and twenty-two dollars and ninety-five cents.

Defendant’s counsel point out the fact, that at the time of the attachment his mortgage note had not become due, and did not become due until the 31st of December, 1893; and that, consequently, plaintiff was well secured, and the stipulation of the contract was that defendaut should ship the seed during the season of 1393-94, which had only been open for a short time, and was at the time of seizure practically suspended.

This explanation is, to our minds, unsatisfactory. The plaintiff’s suit is upon account, as the primary evidence of the defendant’s indebtedness. The note and mortgage were only collateral security therefor. The company was engaged in the business of compressing oil from cotton seed. The contract with the defendant was entered into for the specific object of obtaining cotton seed for the purposes of their business. For that purpose they had agreed to advance money to the defendant to enable him to purchase seed and ship same to them. When purchased and stored the seed constituted a quasi pledge for the defendant’s indebtedness; and he had procured the advances of money with the specific promise in writing to ship same to plaintiff. The plaintiff’s money had been presumably invested in the seed, and it had a right to rely upon them as security for the reimbursement of their outlay.

Looking at the result of the enterprise, the plaintiffs were in the attitude of having advanced two thousand and nine hundred dollars in cash, and received nothing in return; and that of the defendant was of having received that sum, and having on hand at date of seizure only six hundred dollars’ worth of seed.

In the light of these facts, the defendant’s response to the plaintiff’s telegram making inquiry as to what he predicated his drafts upon, wants confirmation; and these facts place the defendant in the equivocal attitude of having either misstated the facts in his answer, or of having disposed of a large part of the seed in the interim between the statement and the seizure. But be that as it may, the defendant declined to make any satisfactory arrangement of the matter with the plaintiff’s agent or attorney, notwithstanding he was pressed and importuned to do so. On the contrary, he distinctly stated to them that he did not intend to pay the plaintiff anything or ship it any seed, unless it continued to pay his drafts— notwithstanding he had largely overdrawn his contract at the time.

It is quite true that the defendant did ship to the plaintiff some bales of cotton, the proceeds whereof so diminished his account as to leave only the sum of one hundred and eighty-eight dollars and thirty-three cents in excess of his two thousand five hundred dollar note; but that shipment was subsequent to the attachment, and exercises no bearing on the question of fraud. That can be viewed only in the light of an afterthought; and it is also significant that just prior to this shipment, the defendant drew on plaintiff several other drafts.

It must be borne in mind, that at the time of the interview that plaintiff’s agent had with the defendant, which is declared in the testimony supra, it is clearly shown that the Mississippi river was navigable at Lake Providence, as the steamboat belonging to the Union Oil Company was due and expected on the following day, and defendant expected to make a deal with her captain in respect to the seed which were subsequently attached.

We are of opinion that the views we expressed in the ease of Shingle and Lumber Company vs. Lorio, 46 An. 441, are strictly applicable and should govern this case.

In that case we said:

“Plaintiffs have, on the other hand, up to date paid out the money and advanced the supplies mentioned, and not only have not received anything by way of return, but are confronted with a large-claim for damages.
“We have examined the record with great care to see whether this unequal condition of affairs was brought about by the conduct of the plaintiffs themselves. * * * It suffices to say that, in our opinion, defendant’s complaints are not only without merit, but, on the contrary, his course has been unjustifiable and his demand unreasonable.
“ There is nothing in the contract to warrant defendant in the-pretension that the plaintiffs were to continue to furnish him with money and supplies,” etc.

It is conceded, that, in order to justify a resort to an attachment-under. the statute relied upon, it is a condition precedent that the defendant must have been guilty of fraud in the sale, or attempted alienation of his property, to the prejudice of his creditors; but we think the facts we have related clearly evidence such a fraudulent intent within the meaning of that statute, and that the plaintiff was entitled to resort to the remedy by attachment.

Entertaining these views, the judgment appealed from must be so-amended as to conform thereto.

It is therefore ordered and decreed that the judgment appealed from be so amended as to reject and disallow the defendant’s demands in toto, except as to the credit he is allowed for the proceeds of cotton delivered to the plaintiff.

It is further ordered and decreed that the judgment dissolving plaintiff’s attachment be set aside, the writ of attachment and the seizure under it be revived, and, as revived, that same be maintained and enforced on the property attached, and that the privilege of plaintiff as attaching creditor be recognized and enforced upon the property attached. »

It is finally ordered and decreed that the judgment be, in all other respects, affirmed, and that the defendant be taxed with the costs of both courts.

On Rehearing.

No objection is made in the application to the opinion in so far as it-appertains to the appellee’s motion to dismiss, but it rests mainly upon the proposition that it is inconsistent with that rendered in -the case of Winter vs. Davis, decided on the same day, wherein we .affirmed a jugdment dissolving an attachment.

Our opinion is predicated upon the stipulations of the following -written contract, viz.:

“ Lake Providence, La., April 25, 1893.
“ For and in consideration of an advance of twenty-five hundred -dollars made by the Standard Cotton Seed Oil Company, of New Orleans, this advance to be paid by honoring drafts to the amount of five hundred dollars per month, I bind myself and agree to ship to the said Standard Cotton Seed Oil Company during the season of 1893-94 four hundred tons and as much more of good, sound cotton seed as I can buy or control, this seed to be weighed on landing at .Lake Providence by clerk of steamboat, and credited to me at the .market price and one dollar per ton commission.
“As security for the payment of this advance and the delivery of the four hundred tons of good, sound seed, I will execute a mortgage on the ginhouse and contents, and transfer the insurance to the .Standard Cotton Seed Oil Company. I also agree to give and take interest at the rate of eight per cent, per annum; that is, I will pay interest on the money from date until payment, and I am to be •credited with interest on all shipments of seed. This signed in •duplicate.
“(Signed) • Peter Matheson.
“Witnesses:
“(Signed) A. B. Johnston.
“W. E. Powers.”

To this contract, the obligor, Matheson, gave his note and mort•gage for twenty-five hundred dollars as collateral security.

The suit is brought upon an open account for about two thousand nine hundred dollars, money advanced under the foregoing contract —embracing overdrafts to the amount of about four hundred dollars.

The consideration of said engagement on the part plaintiff was that ■the defendant should ship to them “ during the season of 1893-94 four hundred tons, and as much more of good cotton seed as (he) can ■buy o?’ control; this seed to be weighed on landing at Lake Providence by clerk of steamboat, and credited to (him) at the market price,” etc.

To re-enforce this stipulation the contract further provides, that “ as security for the payment of this advance, and the delivery of the four hundred tons of good cotton seed,” Matheson agreed to execute a mortgage in favor of the oil company.

Our opinion finds, as, a fact, that the oil company not only advanced to the defendant the whole amount of twenty-five hundred dollars in cash on his drafts, without question, but that they advanced to him four hundred dollars more. That these advances were kept up continuously from the date of the contract to the 25th of October of the same year; and during that period of time not a single pound of cotton seed was shipped by the defendant to the company.

That, realizing that defendant was drawing long after cotton had commenced to open, and cotton seed was deliverable, under their contract, without any shipment having been made, plaintiff wired to defendant to ascertain upon what he predicated his drafts, to which he replied, “ against cotton seed stored in my ginhouse.”

That soon afterward plaintiffs sent a representative to Lake Providence to see the defendant and ascertain the facts, and, if possible, to obtain a settlement of their account.

That representative was particularly directed to ascertain “ why (the defendant) was holding the seed, when it was understood he was to ship as the seed reached him from time to time during the season.”

That in pursuance of those instructions, said representative called on the defendant and “ made demand upon him that he comply with his contract and ship the seed he had on hand; and he refused, giving as his reason that it would occasion him extra expense to haul the seed to the landing,” and further stating that he would ship when the boats could reach his warehouse, provided (the company) continued to pay his drafts; but if these drafts were not honored and should be returned to him, he would make them good by disposing of the seed he had on hand.”

That he requested of the defendant an explanation of the expenditure of the money which the oil company had furnished him, and he declined to give any.

That immediately after said interview it was discovered that the defendant was preparing his cotton seed for sale, and was actually waiting for the arrival of the seed boat of the Union Oil Company— a competing organization of the plaintiff — which was expected down the river the following day.

Our opinion finds, as a fact, that instead of defendant having accumulated four hundred tons of cotton seed, as stipulated in the contract, he had on hand, at date of the seizure under the attachment, only about seventy tons, worth six hundred and twenty-two dollars and ninety-five cents, notwithstanding he had received and consumed over twenty-nine hundred dollars of the plaintiffs’ money without making any shipments to them in the meanwhile.

It finds further that the company was engaged in the business of compressing oil from cotton seed, and that the contract with the defendant was entered into for the express object of obtaining cotton seed for the purposes and uses of its business. That it was for that express purpose it had agreed to and did furnish defendant with money to enable him to purchase seed and ship same to them. That when purchased and stored the seed constituted a quasi pledge for defendant’s indebtedness; and that plaintiffs’ money having been invested in the seed, presumably, it had a right to rely upon same as security for its outlay.

That, looking at the result of the enterprise, plaintiffs were in the attitude of having advanced twenty-nine hundred dollars in cash, and received no return therefor.

Our opinion concludes with this statement, viz.:

“ In the light of these facts, the defendant’s response to the plaintiffs’ telegram, making inquiry as to what he predicated his drafts upon, wants confirmation; and these facts place the defendant in the equivocal attitude of having either misstated the facts in his answer, or of having disposed of a large part of the seed in the interim between the statement and the seizure.
"But, be that as it may, the defendant declined to make any satisfactory arrangement of the matter with plaintiffs’ agent or attorney, notwithstanding he was pressed and importuned to do so. On the contrary, he distinctly stated to them that he did not intend to pay the plaintiffs anything or to ship any seed, unless and until they paid his drafts, notwithstanding he had largely overdrawn his contract at the time,” and had shipped them no seed.

- And now we are for the first time confronted with the following statement, which appears to be wholly at variance with the terms of the written agreements as well as all the proven facts in the case. It is as follows, viz.:

“There was no stipulation to buy seed for the plaintiff; plainly, every pound of seed which defendant should ship to plaintiff was to be his own and credited to him at market prices ruling at the date of shipment. The advances were not stipulated to be for the purpose of enabling defendant to purchase cotton seed, nor could such have been the intent of the parties, for the contract expressly provided for the advancing of the entire sum before the season of ginning and consequently before any seed could be purchased. The plain meaning of the agreement was that the money was loaned to defendant for his general convenience, and in consideration of its use he was to return it with interest, and additionally sell his cotton to the plaintiff at one dollar per ton above the market price.” Defendant’s brief on application for rehearing, page 3.

On the contrary, the agreement declares that the defendant “in consideration of an advance of twenty-five hundred dollars * * * binds himself and agrees to ship to the (oil company) four hundred tons of cotton seed;” and “ as security for the payment of this advance and the delivery of four hundred tons of good, sound seed,” he obligated himself to execute his mortgage.

Have these plain and unambiguous stipulations of the defendant’s written contract anything like the significance, “that the money was loaned to defendant for his general convenience?”

Quite the contrary.

Yet that statement was necessary for the purposes of this application, and to fortify the defendant’s contention that plaintiffs were amply secured by the mortgage.

But the mortgage was but an incident of the transaction, and only a collateral security for the advances of money plaintiffs made.

Let us contrast the facts thus related, and not denied, with those of the case of Winter vs. Davis.

We make the following extracts therefrom, as they appear quoted in brief of defendant, on this application, viz.:

“In the case of William Winter vs. Nitore H. Davis (No. 12,024), decided by your Honors on the same day as the instant case, the agreement between plaintiff and defendant was embodied in a letter and expressed in these words:
“ I do not hesitate to say that I will ship you at least twenty-five hundred bales of cotton, provided you will render me the necessary financial aid. I agree to pay you fifty cents commission on each bale you sell for me, and will further agree not to ship cotton elsewhere, or to sell a single bale in this market, but will ship every bale to you.”

Upon this basis the plaintiff advanced large amounts to defendant. The court found upon the evidence that defendant paid other debts than plaintiffs, made a dation to his wife, and actually sold to another party thirty bales of cotton, and received the price.

Upon these facts the court, Mr. Justice Breaux being its organ, said:

■ “ It is further urged by the plaintiff that the defendant was under obligation to buy cotton and ship it to him; that throughout September and to the 7th day of October, 1893, he seemed to have shipped to him, Winter, in accordance with the contract; that on the 7th of October he, despite the contract, shipped about thirty bales of cotton to others than plaintiff, and received the money therefor.
“ The advances, as we understand, were not made for the sole purpose of buying cotton. They were made to aid the defendant in his business. He, as an inducement, promised to ship cotton to the plaintiff, which the latter was to sell and pay himself from the proceeds.
There was a breach of contract, a failure to comply with an obligation, not of such a character, however, as to justify an attachment.”

In that case defendant complied with his contract to ship plaintiff twenty-five hundred bales of cotton, and shipped cotton to him during the month of September and part of October; but on the 7th of the latter month, he shipped about thirty bales to other parties, and received the money therefor. But plaintiff’s advances were not made for the sole purpose of enabling defendant to buy cotton. They were made to aid him in his business; and “ he, as an inducement, promised to ship cotton to the plaintiff, which the latter was to sell and pay himself from the proceeds.”

The two cases are altogether dissimilar as to their facts.

The oil company was not engaged in the business of a factor, commission merchant or money lender; nor was the defendant engaged in business as a retail country merchant. Their relations are specifically set out and defined in a written contract; thereunder the oil company had not only fully performed its engagement and more, but the defendant had failed and refused to perform his engagement in any respect. Thereunder the defendant had placed himself under definite obligation to purchase, control and ship cotton seed to the plaintiffs for a specific purpose. In pursuance thereof the oil company furnished all the money they had agreed to advance the defendant and more; but defendant failed altogether to comply with his contract, except upon the condition that the oil company would continue to pay his drafts without limit, and beyond the terms of its engagement — notwithstanding he had already overdrawn his limit by four hundred dollars. Not only so, but defendant openly declared to a representative of the oil company, that if his condition was not complied with, he would sell the cotton seed he had then on store — and on the faith of which he had drawn his overdrafts and proposed to draw others — to a competing cotton oil company. And upon the following day — or within a day or two at furthest — the defendant’s cotton seed, aforesaid, was discovered on the river bank preparatory to delivery to the seed boat of the U. ion Oil Company, which was expected to pass down the river on the next day.

The oil company’s representative, finding the defendant determined to put it at defiance, gave him a written protest, and placed the matter in the hands of a local attorney. The attorney examined into the situation of affairs, and, finding them as they had been reported to him, he at once procured the attachment of the defendant’s property.

Under this state of facts can it be affirmed that; Matheson was about to assign or dispose of his property,-or some part thereof, with intent to defraud his creditors within the meaning of Code of Practice, Art. 240, par. 4?

In Herman vs. Amedee, 30 An. 394, it was held that the fraudulent intent necessary to support an attachment is not shown by the mere fact that a merchant is selling and paying off his debts, including that of plaintiff. That was defendant’s situation in Winter vs. Davis.

Very much the same may be said of the principle which was announced in Hernsheim vs. Levy, 32 An. 340.

In Lehman vs. McFarland, 35 An. 624, it was held that an attachment could not be sustained when the “ proposed disposition of their property by the defendants was in the interest of their creditors, whom they proposed to place on a footing of equality and fairness,” etc.

In Wetherow vs. Oroslin, 24 An. 128, the court sustained an attachment on the faith of defendant’s statement “that he owed the plaintiff some money and was unable to pay them at the time; that they were going to sue him, and he wanted to keep his property, but wanted to pay them.”

In Boyd vs. Labranehe, 35 An. 285, the court sustained an attachment on the ground that plaintiff had good reason to believe that defendant was about to dispose of his property to defraud his creditors, and said:

“Promptness of acfion was the one thing needful. Plaintiff was not required to wait until events had shown what defendant really intended to do. They acted on the state of facts as they existed at the moment,” etc.

In Stephens vs. Helpman, 29 An. 635, the court justified an attachment on the ground that the defendant had given an unfair preference to some of his creditors, and had made representations to the plaintiff, upon which he acted.

In Newman vs. Kraim, 34 An. 910, the court sustained an attachment on the ground that the defendant had made threats that he wonid dispose of his property to protect himself, if he was sued.

It is in proof that plaintiffs wired defendant to ascertain upon what he predicated his overdrafts, and that his response was upon cotton seed stored in his ginhouse; whereas, in fact, defendant either misrepresented his real situation, or he fraudulently disposed of a large part of his cotton seed subsequently.

This statement was at first made to influence the plaintiffs to continue to honor his overdrafts, in the expectation of being reimbursed from cotton seed in store; and, failing in the accomplishment of this design, defendant threatened to sell his seed to a rival company, if plaintiffs declined to pay his overdrafts in the future.

These facts fulfil all the requirements of the Stephens and Newman eases.

The phrase intent to defraud finds an excellent interpretation in Chaffe, Powell & West vs. Gill, 43 An. 1053, in which we held that, as the property of the debtor is the common pledge of his creditor, every act done by the debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor is illegal.” Sustaining an attachment. R. C. C. 1968.

The instant ease presents an even more forcible illustration of that principle, in that the defendant had contracted to purchase, control and ship to plaintiffs the cotton seed he had stored in his ginhouse, and upon which his overdrafts had been drawn; and his openly declared intention to sell them, if plaintiffs refused to pay his future overdrafts, was not only a violation of his contract, but an attempt to deprive them of property which was stored for their account, and was a security for the advances they had already made to defendant on the faith of it.

Manifestly these transactions evidence an intent to defraud.

For the foregoing reasons our original opinion and decree are maintained.


text:
    No. 12,015.
    Jacob Marx vs. His Creditors.
    A charge of fraud preferred against an insolvent, under See. 1804 of the Revised Statutes, is prescribed by the lapse of twelve months antecedent to the filing of his schedules under order of court.
    The insolvent laws of this State provide a purely domestic remedy, which can be availed of only by resident creditors, and those domiciled outside of the State who come into our courts and submit themselves to their jurisdiction, by accepting the surrender by proving their debts at a general meeting of the creditors.
    It is of the essence of a charge of fraud under the aforesaid section of the statutes that the opposition should allege and the evidence prove an intention on the part of the insolvent to defraud, and injury resulting therefrom to the complaining creditor.
    APPEAL from the Third Judicial District Court for the Parish of Union. Barksdale, J.

      Gunby & Sholars for Plaintiff, Appellant.

      Everett & Thomas for Defendants, Appellees.
    Argued and submitted June 3, 1896.
    Opinion handed down June 22, 1896.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff is appellant from a judgment sustaining an opposition to the homologation of the proceedings and deliberation of a meeting of his creditors, appointing a definitive syndic, and to the appointment of Mose Haas to be definitive syndic.

The opposition was made by Stern, Lauer, Scholl & Oo., of Cincinnati, Ohio, and Rothschild Bros., of St. Louis, Missouri, creditors of the plaintiff, and Edward Everett, provisional syndic — the first named having an ordinary, unsecured claim for one thousand four hundred and seventy-six dollars and twenty-five cents, and the second one for five hundred and twenty-four dollars and sixteen cents.

The judgment appealed from is predicated upon the verdict of a jury finding the plaintiff “ guilty of fraud in conferring an unlawful preference and advantage upon another bona fide creditor,” and it adjudges and sentences him “ to imprisonment in the parish jail in Farmersville, Union Parish, La., for the period of nine months.”

But this decree is coupled with the proviso that the insolvent may be “ released from imprisonment by paying the complaining creditors, Stern, Lauer, Scholl & Co. and Rothschild Bros., the amount of their debts against him; or by his paying and repairing the amount of injury and fraud done to them, and which is complained of by them, which amount may be fixed by the said Jacob Marx in a proceeding to be had contradictorily with the said complaining creditors, as may be determined by this court.’’

It appears that the syndic’s appointment is not dealt with or disposed of in the foregoing decree, and need not therefore be referred to; and, aside from the various averments in reference to the manner in which proof of the insolvent’s debts was made, and the authority of the persons representing the creditors at the meeting of creditors, the allegations of opponents charging specific acts of fraud against the insolvent are few, and same are embraced in the following extract frbm the brief of his counsel which we have verified, viz.:

“ Opponents aver that Jacob Marx has been guilty of divers acts of fraud during the past three years. That he has shown unfair and undue preference to J. Weiss & Oo., A. Adler & Oo., Wm. Adler & Co., B. Landauer & Co., Horter & Rice; and has paid some of his creditors in full. That said Marx borrowed money from Weiss & Co., and pledged his individual note for same, which was the common pledge of Ms creditors, and placed said funds in a new business in Monroe, La., known as the Marx Company, Limited, but placed his stock in the name of his father-in-law, M. Levy, of Mississippi. That he has collected about five thousand dollars on notes and accounts that he owned when he applied for a respite, in April, 1892; that he has sold about two thousand dollars’ worth of his notes and accounts, and admits he now owns thirteen thousand dollars less than he owned two years ago, and yef has not paid his foreign creditors, whose debts aggregated nine thousand dollars, except one or two whom he preferred and paid in full in the last twelve months, to-wit: The Simon T. Gregory Company, of St. Louis, for three hundred dollars.”

Immediately succeeding this specific charge, the allegation is made that the insolvent had been guilty, during previous years, of various acts of fraud, in the preparation of his schedules, preparatory to obtaining a respite, alleging “that for all of said acts of fraud herein set forth Jacob Marx should be imprisoned according to law and a jury should be summoned to try the same.”

The prayer of opponents corresponds with their averments.

The attorneys for the insolvent attract our attention to several objections of substance apparent upon the face of the papers, and upon them they confidently rely for the reversal of the judgment and verdict of the jury.

They may be summarized as follows, viz.:

First — The prescription of twelve months prior to the cession, against the charges of fraud.

Second — That the creditors opposing the cession, on allegations of fraud, have no standing in court, because they are foreigners, not domiciled within the State of Louisiana, and who have not accepted the surrender of the insolvent under the insolvent laws of the State of Louisiana, and are, consequently, in no way bound thereby.

Third — That opponents have not alleged that the insolvent did any act with intent to defraud his creditors, or that they, as creditors of his, had been injured by the acts complained of.

Fourth — That the opposition is radically defective in not specifying the dates, character and extent of the fraudulent preferences which are complained of.

In limine, the attorneys for the insolvent tendered a plea of no cause of action, the want of jurisdiction ratione materise and the prescriptions of ten days and twelve months.

The last was, by the judge a quo, “ referred to the merits to be tried by the jury,” and the other pleas were overruled.

Upon the finding of the jury, and the rendition of judgment, the attorneys made an extended application for a new trial, which was refused.

In the first place, we think it was manifestly the duty of the judge a quo to have passed upon and decided the applicability of the plea of twelve months prescription, as a question of law, which necessarily determined the admissibility of a great deal of the evidence which has swelled the transcript to unusual proportions.

To illustrate: The opening sentence of the opposition is “that Jacob Marx has been guilty of divers acts of fraud during the past three years,” whereas the insolvent made his application for a respite on the 1st of April, 1892, and the meeting of his creditors, which is the foundation of this opposition, was not filed until the 17th of October, 1894; and the opposition itself came at a later date.

A simple inspection of the statute under which this opposition was filed shows that the prescriptible period begins to run from a date twelve months prior to the date upon which the insolvent’s surrender is made, for the language of the same is:

“ If a debtor, who has voluntarily surrendered his property to his creditors, or has been proceeded against for a surrender, shall have given within the year an unjust advantage or preference to any one or more of his creditors,” etc. Rev. Stat., Sec. 1804.

On the second proposition it appears to be evident that our insolvent laws provide a purely domestic remedy which can be availed of only by domestic creditors, or those domiciled outside of the State, provided they come into our courts and submit themselves to its jurisdiction by accepting the surrender by proving their debts at a general meeting of creditors. For it can not be serious insisted that foreign creditors who have declined, or failed to accept a debtor’s cession, may come into our courts for the sole purpose of enforcing against the insolvent the penalties of the law, while yet withholding an acceptance thereof, which might bind them in the future, by a final discharge through the votes of resident creditors.

But on the third proposition the ease is just as clearly against op - ponents; for upon a most careful analysis of the sections of the insolvent law upon which this opposition is founded, and the decisions of this court defining them, we held that the gravamen of the charge is the intention on the part of the insolvent to defraud and injury to the complainant resulting therefrom. Burdeau vs. His Creditors, 44 An. 11; Vide Campbell vs. His Creditors, 16 La. 348; Montilly vs. Creditors, 18 La. 383; Slocomb vs. Real Estate Bank, 2 Rob. 92.

The following extracts from our opinion in the principal case will suffice, viz.:

“ Whether the insolvent be guilty of fraud or not under this section is in the first place dependent on the question of fact as to the insolvent’s commission of the reprobated act, and in the second place on the fact of his having successfully rebutted the legal presumption of guilty intent raised on the proof of the act. But in order to determine the main question, the insolvent’s guilt of fraud under and in contemplation of the sections of the Revised Statutes we have quoted, we are first to ascertain whether as a matter of fact Burdeau did give within the year an unjust advantage or preference to any one or more of his creditors by payment or otherwise, the effect of which was to injure the complaining creditor.”

!}: * * * *

And upon referring to the foregoing decision, we say: “Those decisions conform strictly to the precise wording of the statute; for it declares not only that the act complained of must have conferred or have been intended to confer on some of the creditors of the insolvent an unjust preference or advantage over the creditor who charges fraud, but it also declares that the effect thereof shall be to injure him.”

Upon a consideration of all of the foregoing objections to the timeliness and sufficiency of charges and proof, we are of the opinion that the case should have been decided in favor of the insolvent.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the sentence of imprisonment and judgment thereon pronounced be annulled and reversed; and it is further ordered and decreed that the insolvent be released from custody, and the demands of opponents rejected at their cost in both courts.


author: McEnery, J.

text:
    No. 12,108.
    The Planters Well Company, Limited, vs. Bodenheimer & Bro.
    This case involves only questions of fact. The judgment of the District Court was rewiewed aud the ease remanded.
    APPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J.

      Clegg & Quintero for Plaintiffs, Appellees.

      P. H. Mentz for Defendants, Appellants.
   The opinion of the court was delivered by

McEnery, J.


author: Breaux, J.

text:
    No. 12,124.
    William Cameron vs. Leon Godchaux.
    The court, under Art. 308 of the Code of Practice, is entrusted with discretion in the matter of granting or refusing an injunction, and it therefore does not follow from the fact that an injunction was granted that the court was without authority to grant a motion allowing dissolution on bond.
    Possession was not sufficiently shown on the face of the papers, and it in consequence is not evident that the court’s ruling, permitting the bonding of the injunction, was erroneous.
    The allegation that the injunction will cause irreparable injury will not take away from the judge all discretion to dissolve it on bond.
    The damages are not irreparable.
    The dissolution of an injunction, upon defendant giving bond, is a matter largely resting in the sound discretion of the court of the first instance, having power of compelling parties to reasonably speed the canse and to prevent losses sometimes occasioned by delay, in quieting the possession on the merits of one entitled to possession.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      Sowell & Martin aud L. F. Suthon for Plaintiff, Appellant.

      Lazarus, Moore & Luce, .Olay Knobloch & Son and Beattie & Beattie for Defendant, Appellee.
    Argued and submitted May 21, 1896.
    Opinion handed down June 1, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff brought suit to be quieted in the possession'of lands he describes in his petition, of which he says he has been violently and fraudulently dispossessed by the defendant.

A writ of injunction was granted to him as auxiliary to the principal relief sought.

The defendant, on motion, applied to be allowed to bond the injunction.

The motion was granted, save as to certain unimportant exceptions.

An appeal was granted to the plaintiff from the order to bond the injunction.

The plaintiff had not been twelve months in possession on the day of the alleged disturbance of his possession.

The character of the disturbance, though within a year after the plaintiff had gone into possession of the property, stamps the action be urges, under Art. 49 of the Code of Practice, as possessory.

In his motion to be permitted to bond, the defendant alleged that he had been in the open and peaceable possession of the property he describes, and was cultivating the land without opposition from the plaintiff.

It may be premised that none of the substantial rights of plaintiff •or defendant are here involved. Whatever may be our decision the title remains unaffected. The claim of the plaintiff that he had an absolute right to the injunction demands a passing notice.

The injunction was not issued under those articles of the Code of Practice construed in several cases (in regard to which we at this time express no opinion, as it is not necessary in deciding the ease) as securing, as a matter of right, an injunction upon affidavit and required bond.

The injunction issued under Art. 303 of the Code of Practice, in which are the words: “may grant injunctions ” in matter of the court’s authority, different from the words in the other articles mandatory in terms.

As the asserted mandatory law, Art. 298 of the Code of Practice, invoked by the counsel for plaintiff, does not apply, we think that this disposes of the proposition, that the law being mandatory, injunction must issue and remain without a dissolving bond. We have seen that Art. 303 is not mandatory.

It devolves upon us at this time to determine whether the grounds were sufficient to authorize the court to grant the order, allowing the defendant to bond the injunction.

The nature and extent of the possession are not plain on the face of the papers.

The evidence in aid of the pleadings hereafter may show all that is required to sustain possession. In the present condition of the case it is not possible with any degree of certainty to determine the entire area of land of which the plaintiff had possession.

We do not wish to be understood as questioning in the least the sincerity of plaintiff, in alleging that he was in possession. It may be that he was in possession, and that the evidence will abundantly prove the fact. At this period of the litigation we do not think that the possession claimed is established.

Evidence is necessary to show possession. It is undetermined, at this time, and undeterminable.

In the eases to which our attention has been directed, possession was virtually admitted. There was a manifest intention to divest the one in possession, and it was evident that the divestiture would have been attended with injury irreparable in character.

In the case under consideration there is uncertainty as to the pos - session of the property.

The damages, in case it be decided that plaintiff is entitled to possession, are all provable and can be compensated in dollars and cents. The delay can be, at most, of a few months, and in the meantime there is a bond conditioned for the delivery of the property in the same condition as when the injunction issued, and for. the payment of all damages the plaintiff suffers.

The plaintiff himself has fixed a value upon the injury alleged which the bond is intended to cover, if it be as alleged.

The temporary suspension of the sales of town lots and the possession for a time of land may, if without right, cause a loss, not, however, irreparable. Although the plaintiff alleges and sincerely thinks that the loss is irreparable, the court is not concluded by the sworn averment. Crescent City Live Stock Landing and Slaughterhouse Company vs. Police Jury, 32 An. 1192, 1197.

We are loath to disturb the action of the District Court in thus having granted the motion to dissolve on bond. The matter of needful delay, prior to trial on the merits and other circumstances, were peculiarly within his knowledge.

His judgment, in this view, it entitled to consideration.

It is affirmed at appellant’s costs.


text:
    No. 12,165.
    State ex rel. Keplinger and Enderlee vs. Octave Perez, Justice of Peace for Second Ward St. Bernard Parish.
    In an appealable case the writ of prohibition is not the remedy.
    The writ of certiorari (not in aid of appellate jurisdiction) is not the remedy to have reviewed appealable issues.
    The functions of the two writs are not enlarged when combined in one application for their issuance.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      H. L. Garland for Relators.
    Respondent in propria persona.

    Submitted on briefs May 6, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

Breaux, J.

This is an application for writs of certiorari and prohibition.

The relators are defendants in a suit brought against them by J. Goucher et al.

The amount claimed is ninety-eight dollars.

In the magistrate’s court the defendants objected to going on with the trial, at the time and place, for the reason that the court was being held and the case heard outside of the territorial limits of the justice presiding; also for the reason that the defendants are not residents of the parish.

The agreed statement of facts shows that the court sat at the stock landing, a place not within the ward of which the respondent is the magistrate. The exception interposed by the defendant was overruled.

Upon this state of facts the relators base their application for the writs of certiorari and prohibition.

The respondent sets forth in the answer to the order nisi that there is no court house or convenient place for holding court in his, the second ward; further, that for the convenience of all concerned the court is held at the place where it has been held many years.

The respondent also pleads a waiver of the objection by relators’ alleged prior plea.

Lastly; the respondent urges that the relators have a remedy by appeal to the District Oourt, and consequently no remedy directly by certiorari and prohibition to the magistrate’s court.

It admits of no question: courts must hold their sessions within the territorial limits fixed by statute, and magistrates can cite before them in civil suits, in so far as relates to a personal judgment, only those who reside in the ward.

On the other hand, one may waive these requirements or sanction the proceedings; the exception being ratione personae.

These issues under our jurisprudence we would not be justified in de - ciding, in the proceedings before us, as the relator has ample remedy by appeal.

Our review of the authorities upon the subject has not resulted in our finding decisions under which the order applied for can be granted.

As to prohibition, without the certiorari, this court held in State ex rel. Follet vs. Judge, 32 An. 1182, that the relator’s right was by appeal; the case was appealable.

The ruling was the same in State ex rel. Hernandez vs. Monroe, 33 An. 923.

On an application for a writ of certiorari against a defendant justice of the peace, this court held that in an unappealable case, under its supervisory jurisdiction it would entertain the writ for the purpose of inquiring into the validity of the proceedings. State ex rel Montague vs. Louis Coquillon, 35 An. 1101.

In a recent case the question was considered and the court reiterated the conclusion previously reached; holding that the relator had other relief, and therefore was without right to apply for prohibition. State ex rel. Shaw vs. Judge, 47 An. 1603.

Our views are not antithetic to, but, on the contrary, are consistent with those expressed in State ex rel. Waller vs. Justice of the Peace, 47 An. 27. The action of nullity, it was held, in the cited case, does not prevent granting the application in an unappealable case.

The writs here are applied for under the supervisory jurisdiction of this court.

Whether prohibition and certiorari be consideed separately, or in one application for both writs, as in this case, this court has uniformly held that there is no ground for the application when the case is appealable. The facts being as here stated; if questions of jurisdiction be illegally decided originally, or on appeal, by a court from which no appeal arises, then these writs may issue. Prior to such an illegality the application can not be granted.

We have only stated such facts as were needful in deciding the application. Whether stated or not stated, they are all, subject to review on appeal to the District Oourt. By no action can that court be divested of its jurisdiction to pass on the question raised.

It is therefore ordered and decreed that the preliminary restraining order be dissolved, and that the relator be taxed with the costs.