author: DeBlanc, J.

text:
    No. 6525.
    A. Hefner vs. S. Hesse and H. Vergez.
    The sureties on an injunction bond can not be held liable for the amount of the judgment enjoined, unless it be proved that the judgment was lost in consequence of the injunction.
    'In seizing property under a fieri facias, encumbered with liens and mortgages, the sheriff should talce note of them, and allow for them, in estimating the amount of property he should seize to satisfy his execution.
    'The sheriff is presumed, as to any official act, to have done his duty, and who alleges that ho has made an excessive levy must prove it.
    An injunction will not lie on account of an excessive seizuro under a fieri facias.

    'The amount of the bond given for the release of property seized under execution, is not in the discretion of the court. It is fixed by law at one-half over the estimated value of the property seized: See Revised Statues, section 3111.

      A judgment debtor who neglects to point out property to satisfy the execution against him, after having been duly notified to do so by the sheriff, can not afterward enjoin his creditor from seizing and selling his immovables before exhausting his movable property.
    "When it appears that an injunction has not been wantonly issued, but that plaintiff has r i-sorted to it under a mistaken but honest belief that he was entitled to do so, only such damages will be allowed on its dissolution as cover the court costs, and counsel fees of defendant.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Beattie, J.

      Goode & Winder and J. S. Goode, for plaintiff and appellant.

      JS. W. Blake and Clay ICnobloch, for defendants.
   The opinion of the court was de.ivered by

DeBlanc, J.

On the sixth of June, 1873, Augustus Hefner obtained judgment against Simon Hesse and Hector Vergez for #4977-56, with interest thereon at the rate of eight per cent per annum from the twenty-eighth of December, 1872.

From that judgment a devolutive appeal was taken by said Hesse •and Yergez, and on the ninth of November, 1874, the judgment appealed from was confirmed by the Supreme Court.

Under that judgment three writs of fieri facias issued on the same day — one directed to the sheriff of Assumption, another to the sheriff of Lafourche, and the third to the sheriff of Terrebonne.

To satisfy those writs, each of said sheriffs seized from Hesse and Yergez a plantation, with the growing crops, the mules, implements of husbandry, the sugar, molasses, corn, hay, carts, shingles, and cord wood thereon being.

On the seventeenth of November, 1873, Hesse and Yergez enjoined those seizures.

Their injunction was partly maintained and partly dissolved by the lower court. From the decree of said court Hefner has appealed.

On the nineteenth of November, 1873, in a petition addressed to the •district judge, Hesse and Yergez alleged that the property then seized was worth one hundred thousand dollars, and was far more than sufficient to satisfy their creditor’s judgment. They swore to the truth of the-facts alleged by them, and prayed:

Eirst — That said seizure be reduced to a reasonable amount.

Second — To be allowed, after the reduction, to retain the property seized by furnishing bond to the sheriff of the parish of Lafourche for such sum as the court would deem just.

Third — That, on said bond being furnished, the sheriffs of Lafourche,.' Terrebonne, and Assumption be ordered to return into their possession the property held under the three writs.

On the same day, the nineteenth of November, 1873, the district judge-ordered “ that the property seized be released to defendants on their furnishing bond in accordance with law in the sum of eight thousand, dollars.”

The bond referred to in that order was furnished — this we learn from the parties’ declaration — but, as said bond is not in evidence, we know not to whom and on what condition it was made payable. We can only-presume, and we do, that, in form and in subs ".anee, it is the bond mentioned in section 3411 of the Revised Statutes.

On the ninth of May, 1874, Hefner filed his first answer to the injunction sued out by Hesse and Vergez, denied their allegations, and prayed that they and the sureties on their injunction bond be condemned in solido to pay him twenty per cent on the amount of the enjoined execution, and, besides, two hundred and fifty dollars as special damages for attorney’s fees.

On the seventh of June, 1875, Hefner filed a' supplemental answer, in which he avers that Hesse and Vergez had then no property left and out of which his claim could be realized; that, by the effects of their injunction, he has lost the whole of his judgment; and that in addition to the damages he claims in his first answer, the said -Hesse and Vergez and the sureties on their bond should be condemned to pay him an amount equal to that which he contends he has lost.

The counsel representing Hesse and Vergez excepted to that supplemental answer; but, as they have not urged this exception in this court, we are authorized to believe that they do not rely upon it, and we pass-it without further notice.

This is the abridged history of this disastrous case. The pursued debtors are ruined, the pursuing creditor is left with an onerous judgment and his recourse against the sureties on two bonds.

Erom the printed arguments of the parties’ counsel we conclude: That those of Hefner have abandoned their demand for an amount equal to-the enjoined judgment, and under the evidence adduced it was well that they did, for they have not proven that their judgment is lost, much less that it was lost in consequence of the injunction. Without establishing- those facts, they can not recover against the sureties on the bond, and as damages, the amount of the judgment. 3 An. 126.

Those representing Hesse and Yergez have abandoned all but one of the grounds on which they based their injunction of the seventeenth of November, 1873. The grounds so abandoned were certainly untenable. The only one they now insist upon is “ that the three sheriffs herein-before mentioned proceeded at once to seize immovable property before exhausting the movable effects of defendants in execution.”

Under the pleadings two principal questions are submitted for our consideration:

First — Were the seizures of Hefner arbitrary and excessive, and, if they were, what remedy should have been resorted'to by the seized debtors ?

Second — Is the sheriff bound, under all circumstances, to first seize the debtor’s movables ?

First — Under the evidence, as found in the transcript, it is not an easy task to decide whether the seizures complained of were or were not excessive. The value of the movables seized is not established, and, though the owners swore that the whole of the property then under seizure was worth one hundred thousand dollars, and had cost them three times that amount, the judge of the lower court did not reduce the seizures, but merely ordered the property seized to be released on defendants furnishing bond in the sum of eight thousand dollars.

Hesse and Yergez have sued out the injunction, and, to succeed, they had to verify their allegations. They have not done so to our satisfaction. Wo believe, as they state, that the value of the property seized was considerable, but was said property free from liens and mortgages ? This they have failed to show, and their own admission is that all they owned and possessed has been sold, and the price realized has been insufficient to pay their creditors.

The mandate of the law is: “The sheriff shall seize the property of the debtor to a sufficient amount to discharge the payment as well as interests and costs; he may even seize something beyond this amount, to pay the interest which may become due and the estimated costs of the seizure and the sale.” C. P. 651.

This court, many years ago, commenting upon this provision of our Code, said: “ The question presented for decision is one of considerable importance, but of little or no difficulty. It is whether a sheriff, who finds a defendant’s property encumbered with general and special mortgages, can take the whole of it, or at least a sufficient part to satisfy the execution in his hands, over and above the lien by which it is affected, or whether he is not compelled to seize an amount equal to that expressed in the writ without noticing the mortgages.

“ The sheriff may seize to a greater amount than that mentioned in the execution. His duty is to act in such a way as to give effect, if possible, to the execution. In doing so he has as much right to notice mortgages on the property he is about to seize as he has the right to notice that an object surrendered to him by the debtor is not his property; an adverse doctrine would render it impracticable to make the money from those who have granted mortgages and privileges.” 1 N. S. 603, 604.

Can we presume that the three sheriffs to whom were directed the three writs already referred to have violated their duty and the law, or must wo presumo that they were informed or did themselves ascertain that the property they were instructed to seize was affected by mortgages and privileges superior in rank or otherwise to any right acquired by Hefner under his judgment? Unless the contrary was shown, we are constrained to believe and decide that each of said sheriffs acted in strict compliance with the law, and that they seized only such an amount of property as was sufficient to satisfy the writs winch they held.

The district judge maintained the injunction of Hesse and Yergez in so far as it arrested the seizure of the immovables, and dissolved it as to the sugar and molasses levied upon. His decree to that effect was rendered on the seventeenth of June, 1876, more than two years after the date of the order releasing the whole of the property seized from Hesse and Yergez under the judgment of Hefner.

What, then, had become of said property? We have the admission of Hefner, corroborated by the admission of Hesse and Yergez, that, at the date of the aforesaid decree, there was 'not left a vestige of that property; that the whole of it had been taken under process or otherwise by the other creditors of those parties, and that, nevertheless, some of those creditors were but partially paid.

In presence of these unconnected facts, these legal presumptions, these unexplained admissions, these contradicted statements, can we sustain the injunction or any portion of the injunction applied for and obtained by Hesse and Yergez? There is not a particle of evidence establishing the vaiue of the movables seized, not a declaration on which we can fix or approximate what it might have brought, if it had been sold, and what proportion of its price the creditor might have received. By that value alone would we have been able to measure the alleged injustice of the seizures, the pretended loss of the creditor.

Those seizures may have been made at a critical moment; they may have awakened the suspicions of the other creditors, alarmed the laborers employed on the seized plantations, frustrated the hopes of the debtors, ruined them, and ruined their merciless creditor; but they were but the exercise of a right granted by the debtor himself, and, however harsh it may be, we can not limit or condemn the legitimate exercise of a right.

The fact that a seizure is excessive does not justify a resort to the writ of injunction. “ If the debtor is of opinion that the sheriff has seized more property than would reasonably be thought necessary to discharge the judgment and costs, he may, on application to the judge who issued the writ, demand that an appraisement be made of said property.” C. P. 652. The judge, on that application, “shall order that an appraisement be made of the same by two competent persons whom he shall name and swear for that purpose, and if he shall find by the appraisement that more property was taken than is necessary to satisfy the judgment, he shall reduce the seizure.” In this case the seizure was not reduced, but, from the plantations to the most insignificant object, every article of property seized was released.

That unqualified release we condemn as irregular, and for two reasons:

First — Because it was granted ex parte, without notice to the creditor.

Second — Because, if excessive, the seizure should have been reduced, limited to specified effects, specified property, and the seized debtor authorized to retain the same on furnishing bond.

Without that notice, how can a creditor protect his interest and his rights against even the most unfounded application ? How can he contradict the false or mistaken averments of such an application ? How can ho prove that the property seized is affected with prior mortgages, higher privileges than his own ?

Without the prescribed appraisement, without a specification of what is to be entirely released and what retained subject to the seizure, how can the judge determine that the property seized is sufficient or insufficient to satisfy the creditor’s claim ?

Is such an application to be allowed on the naked, unsupported affidavit of interested parties — of debtors who, in almost every case,honestly or dishonestly, would not hesitate to swear that any seizure of their property was unjust, excessive, arbitrary; who, blinded by their interests or actuated by the sole intention of defeating or retarding the execution of a judgment, would use and abuse such an irresponsible proceeding ? Assuredly not.

The power of the judge in regard to such applications is limited. He can reduce the amount of the property seized, but he can not fix that of the bond to be furnished by the seized debtor. The amount, the form, the condition of that bond, are fixed by law. It must be executed in favor of the plaintiff in execution, in solido, with one or more good and sufficient sureties domiciliated in the parish where the seizure was made, for an amount one-half over and above the estimated value of the property-seized, conditioned for the faithful delivery of the property at the time of the sale. R. S., section 3411.

When he furnishes such a bond, the defendant in execution is authorized to retain the property seized until the day of the sale. That bond does not release the seizure; it does not prevent the sheriff from advertising the sale. Its object is to avoid the expensive necessity of a keeper; to save the costs of a keeping. Its express condition is the delivery of the property seized on the day of the sale. If the debtor fails to so deliver, his bond — by that failure — acquires the effect of a twelve-months bond, and execution may issue thereon against the principal and thes sureties. R. S., section 3411.

It would be premature to discuss, in this case, the nature and extent of the rights acquired by Hefner under his seizure and his debtor’s bond, or the validity or invalidity of any subsequent seizure or sale of the already seized and bound property. If those rights were properly preserved, they could not have been superseded. The injunction merely suspended the executions, and it may be that, at this very hour, they have as much force as they had on the day they were issued. This we mention to show that as yet, and under the evidence, we can not take for granted, as Hefner contends, that his judgment is lost.

Second — Hesse and Yergez base their defense on article 646 of the Code of Practice. That article provides that “ if the seizing creditor has no privilege or mortgage on the property of the debtor, the sheriff must commence by seizing the movable property; if there be no movables, he may seize the immovables, unless the debtor point out himself what property he wishes to have seized and sold first, provided the property thus pointed out be situated in the parish.”

This article must be construed in connection with article 651, which commands that the sheriff shall seize a sufficient amount of property to discharge the judgment and the costs and interest due at and to accrue after the execution of the writ. In estimating that sufficient, that necessary amount, the sheriff may, and should, as held by this court, notice what prior rights, mortgages, and privileges exist on the property. 1 N. S. 603, 604.

When the debtor’s movables are free from liens, when he has enough of such beyond the liens to discharge the judgment, there can be no doubt that the sheriff, unless he be ordered to seize mortgaged property, must commence by seizing movables. In this case, both movables and immovables have been levied upon, and, on the part of Hesse and Yergez, the principal cause of complaint is that the sheriff did not first seize and sell the contents of their store in Thibodaux.

Is their complaint founded in law ? On the seventeenth of November, 1873, the day on which they sued out their injunction, Hefner’s judgment amounted, in principal and interest, to over five thousand dollars. The contents of the store was estimated by the witnesses at from forty-five hundred to eight thousand dollars, and sold on the seventh of February, 1874, for §888 55. It is true that, at that date, a part of it had been disposed of, but it is as true that, if sold under the execution of the thirteenth of November, 1873, the contents of that store, which then was affected by recorded privileges, would hardly have paid one-fourth of Hefner’s judgment.

When the sheriff of Lafourche received the writ of fieri facias, he called on Mr. Hesse to point out what property ho wished him to seize. Mr. Hesse refused to do so, and the sheriff then proceeded to seize, under instructions from Hefner’s counsel, a plantation and the appurtenances thereon, subject to Hefner’s judicial mortgage, and, besides, the movables mentioned and described in his notice, the value'of which has not been established. From the recorder’s certificate we find that the property in Lafourche was burdened with mortgages and privileges amounting to $12,861 67, not including interest.

In 3 R. R., pp. 153 and 154, this court said: “ It is urged by counsel' for defendant that the seizure was illegal, inasmuch as rights and credits can not be seized until after movables, slaves, and immovables, and that it is not shown that any attempt was made to seize any other property. To us it appears a sufficient answer to say, that whatever right the defendant had to point out property is lost if he allows the sheriff to execute the writ without exercising that right.” C. P. 649.

Hesse and Yergez contend that the property seized was never advertised and that, therefore, they are still in time to point out property. We believe not; it is not the fact that the property seized has been advertised which concludes the debtor, but .the fact that, when called upon to point out property, he refused to do so, allowed the writ to be executed, and, without exercising that right, resorted to an injunction.

In our opinion, that injunction should have been dissolved.

Two hundred and fifty dollars are claimed by Hefner as special damages for attorney’s fees. That amount is as reasonable as it can be. The services claimed are shown by the record, and we are thus enabled, without any additional proof, to judge of their value. They have been rendered, and can not be disallowed.

Is Hefner entitled to any other damages ? His debtors, we acknowledge, have mistaken their remedy, but was this injunction wanton and malicious; did they not honestly believe that they were exercising a legitimate right? The whole of this property, three plantations, mules, implements of husbandry, sugar, molasses, corn, hay, shingles, seed-cane, growing crops, and cord-wood, had been seized to satisfy a claim of a little more than four thousand dollars; their prospects were baffled, their enterprise crushed, and this when they were striving to redeem their obligations and satisfy their creditors. They are liable for their mistake, but not to the extent contended for by Hefner.

We have examined and re-examined the transcript, opened and reopened the counsel’s brief, and we have not found, either in the transcript or the briefs, any evidence to legally convince us that Hefner’s seizures were excessive, or his debtor’s injunction absolutely vexatious. The evidence on both sides is vague, indefinite, incomplete. We have had to supply with presumptions the missing links of that evidence, and though they are sufficient to authorize a dissolution of the injunction, they are insufficient to justify the claim of Hefner for general damages.

Hefner’s counsel have called our attention to the exception taken by them to the admission of Hector Vergez’s testimony. Yergez is one of the parties to this suit. At the date of the second trial of this cause he was absent from and had left the parish of Lafourche, and the testimony given by him and reduced to writing on the first trial was properly admitted by the court on the new trial.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby annulled, avoided, and reversed; and, proceeding to render such judgment as should have been rendered below — ■

It is ordered, adjudged, and decreed that the injunction obtained by 'Simon Hesse and Hector Yergez, on the seventeenth of November, 1873, be and it is hereby dissolved, and that they, the said Hesse and Yergez, and A. Morilli, I. L. Yergez, and O. Crozier, their sureties on the injunction bond, be and they are hereby condemned in solido to pay to Augustus Hefner the sum of two hundred and fifty dollars, with costs In both courts.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6574.
    Joseph Larguier vs. J. Hays White.
    The stipulations made by parties in their contracts, are the law to them, and to their assigns under the contracts, except when such stipulations are in contravention o£ public law, or good morals.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      Herron & Bird, for plaintiff and appellant.

      E. W. Robertson, for defendant.
   The opinion of the court was delivered by

DeBlanc, J.

'Were we called upon to decide this case according to the dictates of equity, we would concur in the views of the district judge and affirm his judgment; but to do so without reservation we would have! to ignore the terms of the parties’ contract, and, however onerous it may be to defendant or partial to plaintiff, that contract is their law.

At Raton Rouge, on the fifth of January, 1871, William Lee leased a plantation from A. Dupuy for the space of five years. He agreed to pay, as the consideration of that lease, eleven hundred dollars in cash and the balance in four installments, represented by four notes, maturing — the first in two, the second in three, the third in four, and the fourth in five years from the fifth of January, 1871.

Dupuy, the lessor, died shortly after the lease had been entered into, leaving as his universal legatee Joseph Larguier, the plaintiff and appellant. On the foot of the act of lease between A. Dupuy and William Lee plaintiff wrote, on the second of January, 1875, the following declaration, to wit: “ The above-recorded lease, with the consent oí William Lee, is transferred to J. Hays White.” In his evidence before the court Lee said: “ I believe Mr. White took the paper with that transfer on it.” Whether ho did or not, he continued to work the plantation, fully aware of the conditions of the lease, which, in his presence and without any objection on his part, had thus been transferred to him. Erom that date he was as bound by its terms as Lee himself had been.

Was it only from the transfer to him that White was informed of the conditions of the lease ? He was on the plantation as one of the partners of Lee from January, 1871, until the end of 1875; ho paid three of the rental notes furnished by the first lessee, and it can not be reasonably presumed that he formed a partnership with said lessee and became his transferee without having read the contract, a copy of which he produced on the trial. That contract was recorded- on the twentieth of July, 1871, and defendant must, or at least should have, in his own interest, ascertained every stipulation it contains.

Two of those stipulations are too important to have escaped the attention of either the lessee or his transferee. In the language of the act, the first is: The improvements Mr. Leo will have no right of removing or payment of the same, except the machinery for the improvement of sugar manufacturing.” The second is: “That the lessee will have no right to cut wood, except for the improvement of the place and the manufacture of the crop raised on the place.” These stipulations and the fact that Lee and his partners took the plantation in the most wretched condition show most conclusively that the improvements and repairs then needed were afterward to be made as a part of the consideration of said lease; except, however, any machinery brought on or attached to the place for the improvement of sugar manufacturing.

In that description, what kind of machinery is included ? In his evidence Lee said: “I thought it meant any new machinery, such as a new kind of sulphur machine, or vacuum pan, or anything like that; nothing was said about any other machinery at the time the lease was entered into; that is all that was said.” Any machinery answering that description and brought on the place by defendant or his partners may, under that express stipulation, be taken and removed by them, unless it is attached to said place with lime and cement, and plaintiff elects to retain it and pay its value.

The only thing of that description which may be removed by defendant is a sulphur machine valued at three hundred dollars. As to the boilers, the value of which was allowed to defendant, they are, by their peculiar destination, excluded from that description, and can not be classed as machinery used for the improvement of sugar manufacturing. Under the law, and without a stipulation to the contrary, defendant would have been entitled to either the boilers or their value; under the contract he is not. That contract defines and fixes his rights and obligations as the transferee of the lease from Dupuy to Lee.

Are or are not sub-lessees controlled by the contract between the original parties? In a remarkable decision rendered by Mr. Justice Spofford when presiding as a district judge he said: “It is equitable that they should be so controlled when notified of the contents of the original lease; it is legal that they should be so bound, because the lessee can convey no greater rights than he himself possesses. It makes no difference in such matters whether the lease was recorded or not.” In this case it was, and White was more than a sub-lessee — he accepted, without any modification, the transfer of the original lease. 10 An. 628.

The lease commented on by Mr. Justice Spofford contained a clause similar in substance to that found in the lease from Dupuy to Lee, and which was transferred to White; it reads as follows: “And whatever improvements the lessees may choose to make, they have the privilege of doing by leaving the same on the premises, free of charge.” In regard to that clause what fell from the pen of the learned judge? Gonventio vincet legem; if not contrary to the law itself, the contract is the law of the parties; and he referred to the case of Miller vs. McCloud, 11 R. 225, in which such a contract has been recognized as legal and binding.

It can not be successfully claimed that as to the intended repairs the lessor was put in default. The evidence on that point is too vague and indefinite to sustain such a pretension, and it was well said by the Supreme Court, in the case of Shull vs. Banks, that the owners of houses would soon be ruined if it were permitted to every tenant to make such repairs as his fancy or caprice might dictate, without notifying the owners as required by law. The wisdom oí that decision is illustrated by the defendant’s reconventional demand. The lessor’s claim is for 81100, the lessee’s and his partner’s for 81197 36. 8 R. R. 171.

Defendant relies on the fact that most of the repairs, the price of which he considers himself entitled to, were made in 1872, 1873, and 1874, when, he contends, there did not exist between him and plaintiff the relation of lessor and lessee. That fact we construe against him, for he does not explain how it is that, during those years, the rent was paid without any mention of those repairs or of the intention to recover the price of the same. The lessee’s and his partner’s silence during that long period strengthens the conviction that the reconventional •claims, which were never presented to the lessor, were thought of only .after defendant was sued or threatened with a suit.

The testimony of Lee. is quoted in the brief of appellee’s counsel, with •a view, we presume, of charging Dupuy with misrepresentation and fraud. Lee said: “At the time of the lease I went around and examined the machinery in the sugar-house and saw that everything was in bad order. I called Dupuy’s attention to the condition of the boilers. He remarked that they were nearly as good as new; that they had lately been repaired at the expense of from two to three hundred dollars, and that left me under the impression that they wore in good condition. I found out afterward that they were not. Had I known it, I would have made •a different arrangement for the boilers.”

Where is the misrepresentation and where the fraud ? Lee visited the place, examined the machinery, found all in bad order, and, nevertheless, after that visit and that examination, he either fixed the price of the lease or maintained that which had already been fixed. He cultivated the place from 1871 until the end of 1874, never complained, never asked a reduction of the price agreed upon, and, at this late hour, intimates, though he saw and inspected all he leased, that he was deceived by the lessor. If so, why did he not sue for a dissolution of the lease ? The suggestion of fraud and misrepresentation on the part of Dupuy is not sustained by the evidence.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of defendant be annulled, avoided, and reversed, so far as it' condemns the plaintiff to pay to said defendant the sum of twelve hundred dollars, with legal interest from judicial demand and •costs of suit.

It is further ordered, adjudged, and decreed that, as amended by this specified and limited avoidance, the judgment of the lower court be and it is hereby affirmed, defendant and appellee to pay the costs in both •courts.


author: Egan, J.

text:
    No. 6550.
    J. U. Payne vs. John Furlow.
    An amendment in the pleadings, by which the • plaintiff, a liquidating partner, claims to be sole owner oí the debt, individually, is admissible.
    A confession o£ judgment, although made in a court without jurisdiction oí thocase, has the force and effect of an account stated and acknowledged, and is only prescribed in ten years.
    i PPEAL from the Seventh Judicial District Court for the parish of ix Avoyelles. Hewes, J.

      Irion & Thorp, for plaintiff and appellee.

      Thomas Overton, for defendant.
   The opinion of the court was delivered by

Egan, J.

The defendant, being indebted to his commission merchants, Payne, Huntington & Co., on an account stated, including notes, on settlement, waived exception of domicile and confessed judgment in their favor before the Fourth District Court of New Orleans, being, however, then and now a resident of the parish of Avoyelles. This was on the fifteenth of February, 1887. On the seventh of April, 1875, owing to-the decisions of this court against the right or power of defendant to waive exception of domicile and the consequent nullity of the judgment pronounced upon the confession, the present suit was instituted upon the same cause of action, alleged in the original petition to be an account stated. The plaintiff, who originally sued as surviving and liquidating partner, subsequently filed two amended petitions, the first of which set up the confession of the defendant, and the second, after adopting the allegations of the original and first-amended petition, claimed sole ownership of the debt and cause of action in J. U. Payne, individually. To the filing of the second amendment, as it is termed, the defendant excepted on the ground that it was a substitution of a new party plaintiff, and inconsistent with the averments of ownership in the original petition. It was competent for the plaintiff to acquire an asset which had originally belonged to his firm, and, of course, to allege and prove such acquisition. He has done both. Such amendments are frequent, and the court below allowed this in its discretion. No injury was done to the defendant. The defendant first filed the exception of res adjudieata, based upon the judgment rendered on confession in writing in the Fourth District Court of New Orleans. This exception was properly overruled. The defendant answered a general denial, and pleaded the prescription of three, five, and ten years. There is in the record a statement of facts or agreed statement signed by counsel for both plaintiffs and defendants which admits the confession of judgment. The original petition and written confession were filed in evidence, and also satisfactory evidence given of tlio transfer of this debt to J. U. Payne, individually. This. written confession might have been proved up and made the basis of a judgment in the court of proper jurisdiction. That it was not so done has enabled the defendant to wage this contest and to bring the case before this court. It was competent to use it as in the present case as to show plaintiff’s right of recovery. Whether the present suit be considered'as based upon an'account stated and acknowledged, or upon this written confession and consent that judgment be entered against the defendant, or both, we think the only prescription applicable is that of ten years, which had not run at the date of its institution. This was the view taken by the judge a quo, who correctly overruled the pleas of prescription. The evidence on the merits establishes fully both the amount of the claim as alleged by plaintiff and the individual ownership of it by J. U. Payne. The defenses urged are purely technical and without merit. The debt is due as demanded by plaintiff and confessed by the defendant.

The court below gave judgment for plaintiff accordingly, and we affirm it.


author: Manning, C. J.

text:
    No. 6531.
    Bernard Soulié vs. Louis Ranson.
    The charge given to a jury, by tlio judgo o£ the court a qua, is not a n'eeossary part of the record.
    Declarations, averments, and admissions made by parties in judicial proceedings can not be subsequently denied by them.
    The agreement by which a creditor, who has bought his debtor’s property, stipulates to roconvey it to the debtor on condition that the latter pays a certain price within a certain time, is a valid contract, and if the debtor fails to pay the price, in accordance with the terms of said contract, his right of redemption will be forfeited, and the title of the property will vest absolutely in the purchaser.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Flagg, J. Trial by jury.

      James B. Augustin and Charles E. Schmiclt, for plaintiff and appellant.

      Crus. A. Breaux and Julien Michel, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indebted to the plaintiff for loans and advances made before the late war, amounting to $26,703 66, the payment of which was secured by mortgage upon his sugar plantation in the parish of St. Charles. In 1867 plaintiff sued upon his debt, and recovered judgment for. the above sum with eight per centum per annum interest, and twelve hundred dollars attorney’s fees, and his mortgage was recognized. Execution issued upon this judgment, and in April, 1868, the plaintiff bought the mortgaged property nt sheriff’s sale, for eighteen thousand dollars cash. < .

Previous to the institution oí that suit a verbal arrangement had been made by the parties, which was reduced to writing and signed the twenty-third of January, 1868, before the issuance of the fieri facias, and which is of so much importance that its chief provisions shall be quoted in-extenso. It may be observed that the coroner was the executive officer who conducted the sale, the defendant, Banson, being the sheriff of the parish at that time.

The preliminary recital mentions the .name and the residence of the plaintiff and defendant, and declares that the agreement witnesseth—

First — That the said Soulie shall cause to bo seized and sold by the coroner of the parish of St. Charles, by virtue of a judgment rendered in the Fourth Judicial District Court for said parish, in the case of Bernard Soulié vs. L. Banson, No. 590 of the docket of said court, a certain tract of land belonging to the said Banson, established as a sugar plantation and situated in said parish on the right bank of the river Mississippi, between lands belonging to Mr. J. L.LaBr anche above and lands of Freret Brothers below, and the undivided half of that certain tract of land lying on the Opelousas railroad and on the Bayou des Allernands, known as the Yacherie; as the whole is more fully described in the petition filed in the above-entitled suit.

Second — That the said Banson will pay all expenses attending the issuing of the fieri facias and the sale of the plantation, including advertisements, commissions, etc., and that he shall cause the property to be appraised at the lowest figure possible.

Third — That the said Soulie binds himself to bid in and buy the said property at the said coroner’s sale; provided it be not bid up by other parties over $36,400.

Fourth — And the -said Soulié binds himself, in case the above article should take effect, to reconvey and sell to such persons as the said Louis Banson shall designate, with a good and sufficient title, but without warranty, the above-described portion of ground on the river Mississippi, established as a sugar plantation, for the price or sum of $36,350, payable in five equal installments of one, two, three, four, and five years, in notes bearing mortgage on said property, with interest at the rate of eight per cent per annum from the first of March, 1868, the clause of non alienando, and five per cent as lawyer’s fees in case of proceedings to enforce the payment of said notes.

Provided, that in case the said Banson shall not have designated a person to whom the sale of the'property is to be made, and who shall execute the notes as above provided; prior to the first of March; 1869, tlien the first installment dué'agreeably to'this article on that day, with eight per cent interest', shall be paid by said Banson,-'and his failure so to do shall work a nullity of this contract, without his being put in mora, and so for the following successive installments.

Fifth — It is the spirit of this agreement that the crops to be made on said plantation are to be wholly affected to the payment of its price as above stipulated. Therefore the said Ranson, or the person he may appoint, promises to give all his attention to the culture (cultivation) of the land and the preservation of the improvements; to use his best efforts to make crops as large as possible, and he binds himself to apply the entire net proceeds, of said crops — after paying the expenses, incurred for raising the crops with the utmost economy — to the payment of said notes <or installments, with interest as above stipulated.

The sixth clause relates to another tract called the Vacherie, which ‘Soulié engages to sell if he can, on such terms and conditions and at such price as he may think proper, and to apply the sum realized by such sale to the extinguishment pro tanto of the notes specified in the fourth clause.

From the close of the war in 1865. to. the date, of this agreement the plantation does not appear to have been cultivated, except in making the necessary preparations for a sugar crop. The condition of the place at the close of the war precluded any attempt, at successful cultivation. It had been in some sort abandoned, the fences and houses were dilapi-. dated, the ditches filled, and the former cultivated fields had become a waste, covered only with weeds and willows. In 1868 the preparations for future cultivation had been brought to sufficient forwardness to permit the hope of a crop for the following year, and on the twentieth of January, 1869, Ranson made application to the firm of B. & A. Soulió for assistance in the way of supplies and advances to make a crop during that year. The result of this application was an agreement by which that firm engaged to make advances not to exceed eight hundred dollars monthly, upon which they were to charge a stipulated interest and commissions. This arrangement lasted four years, viz.: from 1869 to 1872, in-, elusive, and at the expiration of that time the expenses incurred by Ranson and paid by the Soulió firm.largely exceeded the receipts from sale of crops. Bernard Soulió became subsequently the transferee of this claim of the firm.

Near the close of 1872 Soulió declined to advance money or furnish .supplies any longer, and then followed correspondence and negotiation which will be detailed at length in plaintiff’s testimony, the result of all being that Soulió persisted in his refusal, and at length leased the property to John Kelly, who took possession of the plantation.. About the .same time, or shortly thereafter, Ranson removed eight .mules from the place,- and, after an interval of..a day or.two, fourteen other .mules and all the implements of husbandry, etc. .

Thereupon the present suit was instituted, -wherein the. plaintiff, alleges that the defendant had tortiously removed those mules and other specitied property, in value three thousand dollars, from his plantation, and prayed and obtained writs of sequestration, which after some delay were executed.- Exceptions having been made to the sufficiency of the averments of the sequestration, and overruled, the defendant answered, denying that any of the objects thus sequestered belonged to plaintiff, and prayed damages for the illegal sequestration. Then, assuming the quality of plaintiff in reconvention, “ he admits and avers that the plantation mentioned in the petition belongs to plaintiff, who has acquired it as stated in the petition, and he further admits and. avers that after the adjudication thereof to plaintiff he, Ranson, continued in the possession thereof with the right of working the same on condition that ho would send his crops to the plaintiff, Soulie, to be disposed of by the firm of B. & A. Soulie, of which he is a member, the proceeds to be applied to the payment of all disbursements made for the working of the plantation, the balance to be paid over to the defendant, Ranson.”

He then alleges that, pursuant to this agreement, ho did senu the crops to the firm of Soulié, and that no account of their sale has ever been rendered to him; that the cost of buildings, constructed or repaired, on the plantation, and also the cost of necessary work upon the land, “for their account,” has been charged to him, Ranson, and that while some parts of this expense have been paid by the Soulié firm, other items amounting to $5711 25 have not been paid by thorn, but charged to defendant, and a memorandum or itemized statement of such charges is annexed; that a quantity of valuable effects was left by him on the plantation, belonging to himself, which plaintiff has appropriated, and he finally prays that the members of the Soulié firm be condemned to pay him blank sum of dollars for these various matters of alleged indebtedness. •

It is apposite here to notice a novel and -unprecedented proceeding on the part of the attorney whose name is signed to this answer. It is an affidavit filed in this court since the oral argument, that this answer was not intended to be used as a part of the pleadings, that he never requested the clerk to file it, and that during the progress of the trial it was never alluded to nor noticed to be of record. 'Whatever may have been the attention, or want of attention, paid to this answer in the trial in the lower court, it received very marked notice from the counsel of the plaintiff in the oral argument before us. We find it in the record duly-certified, and we do not find any attempt by motion or otherwise, prior to or on the trial below, to excerpt it from the pleadings, or to disown its authenticity. • Papers once filed by an attorney, of record in a cause, can not be ignored on the plea that the clerk had no special direction to tile them,- or that-no particular attention was paid to their contents in the trial, and particularly is this the ease when the paper in question is a vital part of the pleadings, drafted by the attorney with elaborate care, and signed as the attorney in the identical case in which it is filed.

Another answer was filed afterward on same day, signed by the local counsel and also by his associates, in which the defendant denies that plaintiff has any right of ownership in and to the property sequestered, and avers that the sale made of the plantation under judicial process was never intended to bo a sale translative of property as between the parties, and was never so treated by Soulie until January, 1873, and that defendant was left in possession of the property because of that fact, and continued to possess it as owner; that the agreement of January 23,1868, was superseded by another, in which Soulie contracted to supply Ranson with moans to cultivate the property, which disbursements were to be paid by proceeds of sale of crops shipped to the Soulie firm, and the residue applied to the extinguishment'of the debt of Ranson; that in 1870 defendant had an opportunity to sell the property at seventy-five thousand dollars, which would have'extinguished his entire debt and •given him a surplus of forty thousand dollars, and that he declined the offer, because Soulié advised and urged him not to soil, and promised as a consideration for compliance with his wishes that he would advance all the means necessary for the cultivation of the place; that by reason of Soulié’s fraudulent non-compliance with his engagement defendant has been damaged in the full amount of Soulié’s debt, and forty thousand 'dollars besides. A further damage of three hundred dollars for the illegal sequestration is alleged, and judgment is prayed for both sums in reconvention.

Upon those issues the parties went to trial, and a jury rendered a verdict dissolving the sequestration, with three hundred dollars damages, •and annulling the sale of April 4,1868, with twenty-five thousand dollars damages upon the reconventional demand. Judgment was rendered against Soulie accordingly, who appealed.'

A motion to dismiss the appeal is made in this court upon the ground, that the written opinion of the judge a quo, read to the jury, is not in the record. The clerk certifies that there is no written charge of the judge on file, and that the minutes of the court do not show the filing of .any. It is not necessary that it should be in the record. This court hears the case anew in its entirety, and reviews the verdict of the jury. If they should have been misled by the charge, or, as in this case is alleged, disregarded the charge, their error can be corrected here without reference to the probable influence of the language of the court upon •them.

The motion to dismiss can not prevail.

The record is very bulky, but, notwithstanding its forbidding aspect, we have examined it with diligent minuteness. It discloses one of those personal histories whose mournful sadness is not relieved by the irequeney with which they are met, but is rather intensified by the legal consequences which follow them. Ranson returned from the perils of war to find his fair heritage a wilderness of waste. Undaunted by the-difficulties attendant upon recuperation, and refusing to succumb to misfortune, he undertook the repair of his shattered fortunes with manly and hopeful courage. Erom 1865 to 1869 his occupation was cutting and selling wood, which he was enabled'to begin by the loan of a pair of oxen from a néighbor. Gradual preparations were made during these years-for future cane planting, and in 1869 the first crop was essayed. Meanwhile a judgment had been obtained against him, and his property had been sold. The verity and reality of this sale, maintained on the one-hand and denied on the other, is the pivot upon which our judgment must turn.

The testimony of the parties to the suit, and to the agreement of January, 1868, is the source from which we are to derive our knowledge of their intentions and purposes, guided, in case of conflict, by the circumstances under which they acted.

The plaintiff, Soulie’s, narrative is as follows:

“ On the fourth of March, 1867, with Mr. Ranson’s assent, and in perfect understanding with him, I entered suit against him for the amount of my debt. He stated that he had what would plant the next season not-less than one hundred arpents of cane, and was sure, if I would, grant him one, two, three, four, and five years time, he could pay me back my money and redeem his plantation. This occurred in the parish of St-Charles on the fourteenth of March, 1867. He was then working the place on his own hook. He was cutting cord wood, and with the proceeds of that wood working the cane. I recollect that, speaking of the number of mules he had on the place, he mentioned something more than thirty, and he certainly had all the implements of husbandry to work his cane, nor did he speak of any of the mules belonging to his wife.

“ On the fifth of June, 1867, judgment was rendered in my favor in the suit already mentioned. In accordance with the arrangements above recited, on the twenty-third of January, 1868, wo entered into the agreement under private signature which is on file. On the fourth of April, 1868, the property was sold under á writ of execution, and adjudicated to me for eighteen thousand dollars, and a deed executed. The above-mentioned contract thereby took effect. It must be observed that in that contract Mr. Ranson undertook to work the place as a sugar plantation, and he did so work it for that year with the mules and tools he had. On the twentieth of January, 1869, Mr. Ranson called on me and represented that lie was unable to carry on the plantation any longer without 'assistance, and 'requested me to comé to his aid. Í having, unfortunately, ■ consented, we drew up and signed an agreement of B. & A. Soulié of that date which has been assigned to me.

“ From the first year Mr. Banson has largely exceeded the amount agreed upon (eight hundred dollars monthly), and has never raised a paying crop. (Here follows a statement in figures of receipts and disbursements.) Thus it will be seen that in the four years Mr. Banson worked the plantation ho sank the' enormous sum of. $28,868 06, exclusive of interest and commissions. Moreover, I had advanced to him in 1870 seven hundred and twenty dollars to pay the schooling of his two youngest boys, and Í loaned him three hundred dollars to pay the expenses attending his daughter’s marriage; On the twenty-eighth of December, 1871, in view of the disastrous results then made manifest I wrote Mr. Banson that I withdrew from the agreement of the twenty-third of January, 1868, and that I held myself free from its provisions and at liberty to enter into any new arrangement I might see fit with regard to the plantation by virtue of our contract.”

The witness then states that he yielded to Mr. Banson’s importunities, and continued to supply him another year, with the same disastrous result, and finally, in December, 1872, refused to go on longer, and informed Banson that he should let the plantation, and would give the preference to Banson if he could get any one to supply him. Banson said he could manage to go on cultivating, but the means upon which he relied were so slender and so precarious that Soulie thought it was folly to rely on them, and declined to let the place on such prospects. He informed Banson that he had a good tenant in view, and as he did not wish to put him out on the road he would give him another house to live in until he could find something to dó. Upon this Banson said, You may rent.”

The place was rented to Kelly, reserving the house and dependencies, which had been placed at Banson’s disposal. The lessee took possession on the third of February, 1873, and required an inventory of the movables to be made, which was to be done in a few days. Soulié proceeds: “ Thus matters stood. Never had a-word of reproach escaped Mr. Ban-son’s lips; on the contrary, .he had extolled my kindness to him to the utmost. He often said I was a father to him,” etc. The removal of the mules, etc., followed.

Banson’s version of the transaction is as follows:

“ In 1868 Mr. Soulie and myself came to the agreement that I should sell the plantation .to arrange my business, and it was perfectly understood that the plantation was to be bought by him, and according to contract he was to buy the place, and I was to dispose of it as if still my own; it was to change nothing except as to the naked title of the plantation. I always continued in the possession of the property, and there never was any. change.”

After describing the condition of the plantation at the close of the war, and, stating his own occupation for three years immediately succeeding that event, he proceeds: “I cultivated a very small quantity of cane for seed in 1868. I had stock which was engaged in the wood business. I had twenty-six mules and oxen. It was with my own money I bought that stock, money earned with my wood, and in my office of sheriff. That was the stock used in carrying on my wood business, and I afterward used the same stock in cultivating the plantation. I used them in cultivating the plantation after the sale, and under the agreement- with Soulie. * * ';i I bought some seed cane from different parties, small quantities; that is the way I started. I managed my place according to my own judgment, and allowed no pne to interfere with said management, it being my place.”

The offer of seventy-five thousand dollars for the place, through Meunier, a broker, is then detailed, and he says he wanted to sell, but Soulié dissuaded him, as in his opinion it would bo an act of folly, and that he could make his fortune on the place, and get back all ho had lost. Hanson replied that he had no means to carry on the planting, and Soulie rejoined that ho would furnish him as long as ho lived, and would fix his business so that this help should be continued after his death. The offer was declined, defendant says, because of these assurances of Soulie.

“ "When Mr. Kelly came to the place,” the defendant is again speaking, “ I told liim ho could take the house, and I moved to a house on my old place. My reasons for so doing were that, knowing the tract I was living on was bought by Mr. Soulie, and as I had never paid for it, I thought I had no business on Mr. Soulió’s premises.” Kelly informed him Soulie had rented him the place with the mules, carts, and utensils, and defendant said that cpuld not be correct, as eight mules belonged to ífis wife, and he affirms that ho expressed no willingness to let the fourteen belonging to himself go with the place. Pour of these fourteen are dead. The eight belonging to his wife were bought with her money. She. is separated in property.

Soulie has no recollection of the conversation with Eanson touching the offer of seventy-five thousand dollars for the place, and, indeed, denies that it occurred. Meunier, the broker, says the offer was made to }fis partner, White, and that he was not present, and that it was made by a New York insurance agent, then in New Orleans, for other parties, but he does not disclose the names of these parties, nor even of the insurance agent, with whom, he had no personal communication.

Mr. Kelly, Jr., soil of the lessee, was present at the conversation of his father with Ranson, when the latter came to take possession of the plantation. “ Ranson said it was affright, except as tó the mules, eight of which belonged to his wife, but the lessee refused to receive less than the full number, and, announcing that he would have an inventory made, Banson then said it was immaterial to him, that he was ready to turn over the fourteen mules any day.”

The testimony of other witnesses is before us, a detail of which would swell this opinion inconveniently and unnecessarily. It is duly considered in .forming our conclusions upon the facts.

The sale of the fourth of April, 1867, controlled in its effect by the agreement of January 23,1868, which was only putting in more durable form the oral agreement contemporaneous with the sale, has all the features of the vente áróméré. The Code thus defines this right of redemption. It is an agreement or paction, by which the vendor reserves to himself the power of taking back the thing sold by returning the price paid for it. Civil Codo, articles 2545 et seq., new Nos. 2567. It is 9, literal translation from the Code Napoleon, omitting a part not of significance here. Code Napoleon, article 1659.

The price paid by Soulie was eighteen thousand dollars, and that stipulated to be paid in redemption was §36,350, and it is “ the price paid for it ” that the Code designates as that to bo returned under this species of sale. It is apparent that the larger sum was really the price paid by' Soulie, since his debt amounted to that. The sale was to operate an ex-tinguishment of the mortgage debt. The redemption price should be the amount of that debt with its accruing interest. But were it otherwise, the French authorities sanction the validity of a stipulation for the return of a larger price.

Gilbert, annotating the article of the Napoleon Code already mentioned, says:

“ On peut valablomont stipuler que le vendeur paiera a l’acquéreur une somme plus forte que celle constitue le prix de la vente.” 9 Mars, 1808.

Pothier says such an agreement has nothing illicit in it (Traite du Contrat de Yente, No. 413); and Merlin is of same opinion. Bepertoire, Faculté de Bachat, No. 8. The commentators are not, however, in entire unanimity, but the reasoning of Delvincourt and his two associates in opinion does not apply in this case. Duvergier combats them thus:

• “ Si Ton se borne a dire que cette stipulation décéle la fraude etl’usure, que lestribunaux á qui l’on nefournira point d’explications satisfaisantes, qui d’ailleurs apercevront d’autres indices, pourront annuler la convention ou réduire les intóréts, je ne conteste pas cette doctrine; mais on est évidemment dans Terreur si Ton pretend avec MM. Delvincourt, Duranton, et Troplong, que la convention est illicite. Ces auteurs ont códó á un mouvement naturel d’animadversation contre les ruses des próteurs. Préoccupés du désir louable de déjouer leurs speculations, ils ont creé une prohibition que la loi n’ótablit point; ils ont. declaró toujours et de droit frauclúleuses et usuraires des stipulations qui le sont souvent, mais qui quelquefois peuvent etre loyales et légales; confondant ainsi, il faut bien le dire, les innocents avec les coupables.

“ Pothier a reconnu que la convention n’a rion en soi d’illiete, et un arret, de la Cour do Paris a consacré cette doctrine.” Tome 2, No. 12.

The stipulation for an increased redemption price in this suit was not a cloak for usurious charges.

This sale, with right of redemption, under the circumstances of that, time, seems to us a natural arrangement for the parties. Both appear to have had great confidence in the future. No doubt Ranson thoroughly believed in and trusted to his ability to meet the stipulated payments. All ho wanted was the help of capital to enable him to utilize his splendid opportunities, and Soulié was the god who could dispense the shower of gold. If the mortgage were foreclosed without an arrangement, between the parties, Soulié might become the owner, unhampered by any obligation touching tho redemption. And here the defendant’s counsel earnestly insist that the true interpretation of Soulió’s conduct is that, all of Ms complaisant promises were made to induce Ranson to accord him a judgment without opposition, for, if prescription had been pleaded,, Soulió’s debt was lost.

This is reading events of that day by the light of the present time. In April, 1807, the date of rendition of this judgment, prescription was not supposed to bo legally applicable to debts situated like this. Deduct the years of the war, and the debt was safe. And prescription was-a plea invoked by few in those days against a just debt.

The doctrine of this court in April, 1867, was that tho circumstances, and facts of each case, and the respective situations of tho parties must, be taken into consideration in applying the plea of prescription. Munson vs. Robertson, 19 An. 170. Throughout the Annual Reports of 1868 there was a hazy indefiniteness on the bench and at the bar upon this mooted question. Rabel vs. Poarciau, 20 An. 131; Durbin vs. Taylor, idem, 219; Payne vs. Douglas, idem, 280; Marcy vs. Steel, idem, 413; Norwood vs. Mills, idem, 422 Lemon vs. West, idem, 427; Schlenker vs. Taliaferro, idem, 565.

It was not until February, 1869, that this court authoritatively and unqualifiedly declared that the maxim contra non valentem agere non currit %>rescriplio has no application in our system of jurisprudence, and thus terminated the dispute in which the chances of victory had- often oscillated. Smith vs. Stewart, 21 An. 67.

But, independent of all this reasoning upon probabilities, there is the actual fact that Ranson did agree that in ease neither he nor tho person whom he should designate performed the acts specified in the writing of January, 1868, by a given date, “his failure so to do shall work a nullity of tho contract.” The answer to this suit, prepared and exhibited to Soulie before his departure for Europe, when his first deposition was taken, “ admits and avers that the plantation belongs to the plaintiff,” and, although the second answer is ¿lied the same day as the first, it was prepared some time afterward under new advice, and when a change in the defense was deemed advisable. It is not permissible to deny what, one has solemnly acknowledged in a judicial proceeding. The admissions are made stronger by being transmuted into averments which he can not be permitted to gainsay. Estill vs. Holmes, 3 Rob. 134; Gridley vs. Conner, 4 An. 417; Denton vs. Erwin, 5 An. 18.

It follows that the defendant is not entitled to damages for Soulié’s refusal to sell what was his own, and we may add, had the property-been Ranson’s, he could not recover damages from Soulie for giving him bad advice in relation to an act the performance of which depended on. his own volition.

Reverting now to the original action, it is abundantly proved that the mules on the place at the time of the sale of the plantation were bought, with the defendant’s own money and his wife’s paraphernal funds. We find nothing conveyed in the proces vefbalot sale besides the land. Neither mules nor implements of husbandry are mentioned, or included in its terms. After the sale, and during the four years cultivation, many mules were bought with Soulié’s money, but Ranson is charged with the funds thus expended. This cultivation of tho plantation by Ranson is under a contract quite distinct from that of January 18G8 — so distinct, that his counsel insist it superseded the first contract — and the property purchased then was bought and charged after the same fashion that, factors here observe in their purchases for their country clients. The planter orders the animals or other things needed. The factor buys, or has them bought, and charges the price, with commission, to the plantel'. The animals belong to the planter. The factor is creditor to him for the price, etc.

Soulié has not sued for tho price of the mules. His sequestration is-based upon the theory of ownership, which has been demonstrated to be unfounded.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court setting aside the sequestration of the mules with three hundred dollars damages against plaintiff is affirmed, and it is further ordered, adjudged, and decreed that tho judgment of the lower court in. favor of the defendant upon his reconventional demand annulling the sale of the plantation, with twenty-five thousand dollars damages, is avoided and reversed, and that said reconventional demand be rejected, and that defendant recover of plaintiff the costs of both courts, except the costs of tho reconventional demand, which are to bo paid by him.


author: Morgan, J. Wyly, J., Spencér, J.

text:
    No. 6204.
    Mary Hardy vs. John A. Stevenson.
    An arrest, without probable cause, raises a presumption ol malice.
    On assessing the damages for an illegal arrest the character of the complainant should have some influence in determining the amount of damages.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Trial by jury. Dewing, J.

      Barreno c6 Pope, T. & E. J. Ellis, and James Lingan, for plaintiff and appellant.

      Breaux, Fenner & Hetll, for defendant.
   The opinion of the court was delivered by

Morgan, J.

In Leovy’s Digest of City Laws, page 323, article 680, is found the following ordinance: “ It is unlawful to abuse, provoke, or disturb any person, to make charivari, or to appear masked or disguised in the streets, or in any public place.”

On the seventeenth of September, 1873, John A. Stevenson, the defendant, went before the then recorder of the First District and made the following affidavit: ■

“John A. Stevenson, Upper City Hotel, who having been duly sworn doth depose and say that on the seventeenth day of September, 1873, on Gravier street, in this district and city, one Mary Keener did then and there, while affiant was conversing with friends, rudely present herself to him and address him -in threatening and insulting language. And affiant further says that the accused has frequently heretofore assailed him in a manner scandalizing him greatly, and for the purpose of illegally extorting money from him, and affiant believes, and has reason to believe, that the. accused will commit a further breach of the peace unless she be restrained by law. All against the peace and dignity of the State. Y/herefore deponent charges the accused with insult and abuse and disturbing the peace, and prays that she bo arrested and dealt with according to law.” .

Under this charge plaintiff was locked up in a cell from about one o’clock to eleven o’clock p. m., when she was released on bail. Subsequently the proceedings were dismissed, no one appearing on the day of trial to prosecute. She brings tnis suit- for fifty thousand dollars damages for false imprisonment.

We give the statement of the defendant as to the cause of the arrest. He says that on the day in question, while he was in conversation with a gentleman on Gravier street, near St. Charles, he saw the plaintiff; tlfat he attempted to avoid her, knowing that she would speak to him; that after walking a few steps he met another gentleman with whom he stopped to speak, and had said but a word or two.when plaintiff presentec! herself close to him, with looks of menace; that he left this- gentleman, going toward the corner; that plaintiff followed close by his side until he reached a' point where another gentleman was standing, to whom he spoke, saying, “Here is this woman following me and annoying me again.” He requested the gentleman to endeavor to induce her to go away from him. The gentleman asked plaintiff, “Why don’t you let this man alone ?” To this question she made no reply that he recollects, except by her manner and looks, which were defiant. His companion repeated the question, and then said to him that he would have to resort to the police. They then went up St. Charles street, the plaintiff following closely, so closely that his companion feared she would do him (the defendant) some great bodily harm. He says he made the affidavit to protect himself from the plaintiff’s following and approaching him in the streets before gentlemen, and from being scandalized, and to get his peace and that of his family. There is no evidence that the plaintiff assaulted the defendant, or that she even spoke rudely to him when she saw him on Gravier street, or during their walk to the recorder’s office. What occurred while she was before the recorder we take from the recorder’s testimony. He says that Stevenson came to his office and stated that the plaintiff annoyed him; that she met him in the street and was using language which was not respectable (respectful) to him, and he wanted to put a stop to it; that plaintiff accompanied him; that defendant remarked if she would give a bond to keep the peace it was all he would require; that he, the recorder, asked her if she would give the bond, and that she answered no, that she had done nothing to Mr. Stevenson which would require her to give a bond; that Stevenson then said he was willing she should give her own recognizance, which she refused; that he told her if she did not he would have to send her to prison; that she said she did not care, she would not give a bond; that she had done nothing that would require it. Then the affidavit was made against her, and then, without an investigation as to the facts alleged therein, she was “locked up.” Her own account of what occurred up to the time of her incarceration does not differ in any material particular from the testimony of the defendant and his witnesses. She was confined in a cell. The turnkey endeavored to find two parties whom she named, but was unsuccessful. Her residence was distant from the place of her imprisonment, and her daughter, with her companion, came to her between eight .and nine o’clock at night. Plaintiff was standing up when they came; she was separated from them by iron bars; she endeavored to reach them, but, overcome by emotion, she staggered and fell upon a box containing nuisance ; when she recovered she was lying on a filthy mattress, which was alive with vermin.

Taking the case as it is stated by the defendant, and confining ourselves entirely within the' limits of the occurrences of the seventeenth of Septembep as the defendant insists that we should, and we have before us an arrest and imprisonment at the instance of .the defendant without any justification therefor. The affidavit upon which the plaintiff was imprisoned was false, and is proved to be false by his own testimony. It •charges the plaintiff with having rudely presented herself to him, addressing him in threatening'and insulting language, with abuse, and with disturbing the peace. -His own testimony shows that she did not abuse him; that she did not threaten Mm; that she did not insult him; and that she was not disturbing the peace. This case is one in which a man, using the machinery of the law to that end, caused the arrest of a woman who was doing no wrong, and had her confined in the cell of a prison without any justification whatever therefor. That the plaintiff is. entitled to exemplary damages for such treatment can not be questioned.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and it is now ordered, adjudged, and decreed that the plaintiff do have and recover judgment •against the defendant in the sum of five thousand dollars, with costs, ip •both courts.

Wyly, J.,

dissenting. I agree that the defendant caused the arrest of plaintiff without showing probable cause. Malice is presumed. Damages should be imposed, but five thousand dollars is disproportionate to the offense; it is excessive. I think one thousand dollars sufficient. The policy of the law in enforcing vindictive damages is to correct the evil— to deter others from committing the offense. It is not to enrich the. party wronged, or to destroy the wrong-doer.

I therefore dissent in this .case.

Rehearing granted.

On Rehearing.

The opinion of the court was delivered by

Spencér, J.

This case has been twice tried by jury in the lower court. On the first trial the jury gave a verdict for plaintiff of ten thousand ■dollars. On the second, a verdict for defendant, Judgment hairing been entered accordingly, plaintiff prosecutes this appeal. The ease is now before us .on a rehearing, granted by our predecessors to the defendant, who was, by the decree, of this court, condensed to pay plaintiff five thousand dollars damages. ....

On the first hearing in this court,, the opinion was unanimous that the arrest of plaintiff, on the seventeenth of September, 1873, was procured "by defendant without probable cause, and therefore, by presumption, maliciously.

We have given the facts of this case very careful consideration, and are constrained to the same conclusion as our predecessors, that the •arrest on the seventeenth of September, 1873, was without probable cause, as shown by the defendant’s own statements as a witness. He says “ that he was not threatened by words by the plaintiff, Mrs. Hardy, that day, September seventeenth; she did not use any threatening language that day while he was talking with' his friends on G-ravier street; she used no threatening- language before Judge Hunt spoke to her, and no insulting language; she used no language at all. That it was her rude and brusque manner in presenting- herself to him and her angry looks -that constituted the breach of the peace complained of in his affidavit; that the threatening and insulting language he complained of in the affidavit was such as this: “Are you not going to do something for me? When are you going to do something for me?” She did not threaten him personally that day in words, or abuse him, personally that day, beyond the usual running conversation she had with him while walking with him up St. Charles street. * * * She was not talking very loud, etc.

' • This statement of the facts by the defendant himself is certainly inconsistent with his affidavit that she did then and there, while affiant was conversing with friends, rudely present herself to him, and address him .in threatening and insulting language.”

If this affidavit was made under the city ordinance declaring it “ unlawful to abuse, provoke, or disturb any person * * * in the streets or in any public place” (which seems doubtful), we do not think the facts stated amount to the offenses of “ abuse, provocation, or disturbance ” contemplated by that ordinance.

We do not wish to be understood as indorsing the proposition that a ■woman of doubtful character has the right to shadow, and, as it were, dog a man about the streets, for the purpose of annoying him or extorting money from him. We have no doubt that defendant (not without .-fault himself) had been on many occasions greatly annoyed — perhaps abused, provoked, and disturbed ” — by the plaintiff. But on this particular occasion we do not find in her conduct such abuse, provocation, or. disturbance-as would-excuse the defendant In having her‘arrested and imprisoned. We think he acted unwarrantably and hastily, and must pay the plaintiff such damages as will reasonably compensate her -.for the injury and wrong done to her person, her feelings, and reputation.

In the oral argument -the counsel suggested that it was desirable that the court should now finally dispose of this case, without remanding it lor another trial by jury. Wo concur in. these suggestions, for this record does not re-assure one of the advantages of jury trials.

We are not inclined to award the plaintiff vindictive damages. The proofs in this record satisfy us that, though not excusable for arresting the plaintiff on the seventeenth of September, the defendant had previously suffered great annoyance from her. That she had not always, even on the streets, conducted herself towai’d him in a very ladylike manner. She was a mature woman and widow when her acquaintance with him began, and has no very gi'eat claim to sympathy for the results, certainly not much more than he has. Both, perhaps, deserve the pity of the charitable, for “ to err is human.”

We do not think that plaintiff is entitled to such damages as would be awax’ded to a pure and unblemished woman; character, reputation, ought to be considered, as wpll as the actual physical and mental suffering of the injui'ed party. Considering a-11 the facts, condition of the parties, the length of imprisonment, its effect upon plaintiff’s health, the mental suffering resulting from the incarceration, her standing in the community, we think that á judgixient for fifteen hundred dolíais is sufficient compensation to her and ample punishmont of the defendant.

It is therefore ordered, adjudged, and decreed that the verdict of the jury and the judgment of the lower court be avoided and reversed; and it is now ordered and decreed that the judgment heretofore rendered by this court bo amended so as to reduce the amount allowed the plaintiff to fifteen hundred dollars, and that defendant pay costs of both courts.