author: Blanchard, J. Blanchard, J.

text:
    No. 12,477.
    A. S. B. Pior, Tutor, vs. D. M. Giddens, et als.
    The separate creditor o£ either spouse can not, after dissolution of the community, deal with an undivided interest of his debtor iu any specific piece of property belonging to the community, proceed against it by direct seizure, sell it and. apply its proceeds to payment of his debt.
    His proper course is to force by appropriate proceedings a final settlement and liquidation of the community, and then to subject, by process of law, the interest of his debtor thus found to the satisfaction of his claim.
    A wife, owning by inheritance an undivided half of a plantation, purchases during the marriage from her co-heirs their interest. The interest so purchased fell into the community of acquets and gains, unless declared and shown to be purchased for her separate account with paraphernal funds.
    A husband, who, after dissolution of the community by death of the wife, pays out of his own funds debts of the community,-becomes subrogated to the rights of the creditors so paid.
    Against his claim for reimbursement of the debts thus paid — he having the.administration of the property — prescription does not run until a liquidation and settlement of the community.
    Where the separate property of the wife during her lifetime is administered by the husband, the debts incurred in such administration, such as expenses of cultivating a plantation, are community debts, and the revenues assets of the community.
    APPEAL from the Ninth Judicial District Court for the Parish of Red River. Hall, J.

      Wilkinson & Wilkinson and John I. Teer for Plaintiff, Appellant.
    J. O. Egan, Sr., for Defendants, Appellees.
    Argued and submitted May 10, 1897.
    Opinion handed down December 29, 1897.
    Judgment amended and rehearing refused March 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

In March, 1889, D. M. Giddens contracted a loan of money from the plaintiff and to secure payment thereof executed ■a mortgage on certain lands forming what is known as “the Sprowls Place ” in Red River parish.

This debt remaining unsettled, an action was brought in 1893 to -enforce its payment.

A short time prior to the filing of that suit Giddens made what purported to be a final settlement with his sons, R. A. and A. S. Giddens, whose tutor he had been, in which settlement he delivered to them, as their inheritance, along with other property, the Sprowls Place, which he had a few years previously mortgaged, as his own property, to plaintiff.

Because of this settlement with his sons and this delivery of the mortgaged property to them, the sons were made parties defendant, •along with the father, in the action to enforce payment of the debt for borrowed money, and the settlement and delivery was asked to be avoided in so far as the same affected the rights of the complaining creditor.

In that litigation the judgment of the court below was in favor -of plaintiff, decreeing recovery of the amount sued for, recognizing the mortgage as existing on the interest of D. M. Giddens in the •Sprowls Place, which was fixed at an undivided one-third thereof, •and avoiding the settlement and delivery of property made by Gid•dens to his sons, so far as the same affected plaintiff’s right as mort.gage creditor to the extent his mortgage was recognized in the judgment.

From this judgment R. A. and A. S. Giddens prosecuted an appeal .to this court, and in 1894 a decree was handed down reversing in part the judgment appealed from and directing that the rights of the plaintiff under the mortgage be restricted to the interest of D. MGiddens in the community between himself and his deceased wife, to-be ascertained by proper proceedings in the court below, to which-court the case was remanded for the purpose. In this remanding the rights of the plaintiff were fully reserved to make effectual for the satisfaction of his mortgage the interest of D. M. Giddens in the community. 46 An. 1406.

Following this the present suit was instituted, the purpose of which-seems, first, to have it decreed that D. M. Giddens owns individually an undivided one-third of the property which he had mortgaged to-plaintiff in 1889, and subjecting same to the satisfaction of the mortgage debt; and, failing in this, second, to have determined the interest of said Giddens in the community between himself and his deceased wife, to the end that the same may be made amenable to plaintiff’s claim under the hypothecation aforesaid.

It is clear that the inquiry herein must be limited to the latter. The decree of this court in the former suit directs precisely that the rights of plaintiff under the mortgage be restricted to the interest of' ■ the elder Giddens in the community between himself and his dead wife, to be ascertained according to law. The intention and declara - tion of our judgment in that controversy was that the case be remanded for a settlement of community affairs.

This involved, first, ascertaining what were the rights of ownership of the community in the property which D. M. Giddens had mortgaged to plaintiff; and, second, how his interest in the share owned by the community might be affected by indebtedness, if any, due by him to the community, or by the community to him, as the case might be. And then, finally, should anything be left to Giddens, as the result of such settlement of community affairs, to apply same to the satisfaction of plaintiff’s mortgage claim. The opinion of the court declared that the community between the husband and wife-had never been settled and liquidated, and, consequently, that the rights of the spouses had not been fixed and determined. It was correctly held that the separate creditor of either spouse has the right, after the dissolution of the community, to have the community liquidated; that he can not deal with an undivided interest of his debtor in any specific piece of property belonging to the community, proceed against it by direct seizure, sell it and apply the proceeds to-payment of his debt; that his proper course is to force by appropriate proceedings a final settlement and liquidation of the community, and then to proceed legally to subject the interest of his debtor thus found to the satisfaction of his debt. 46 An. 1145.

Thus is pointed out clearly the only course to be pursued in this later edition of a long standing litigation.

Robert H. Armistead died in 1868. He left surviving him a widow, Louisa Armistead. The community between them owned at the death of the husband several small Red river plantations. There were three children of this marriage surviving and of age when the father died. They were, Martha E., Mary Jane and John H. 4rmis-stead.

The first was married to J. W. Sandiford. Mary Jane Armistead had married David Briggs, who died in 1862. Three children were born of this marriage, of whom two were living when the grandfather, Robert H. Armistead, died.

Briggs owned some cotton which was sold after the war by Robert H. Armistead and netted fifteen hundred dollars. He retained this sum in his hands and owed it at his death — one half to Mrs. Briggs, widow in community, the other half to the Briggs children. '

Mrs. Briggs, the widow, in 1868, just after the death of her father, married D. M. Giddens. Two children sprang from this union — Robert A., born in February, 1870, Albert S. in August, 1872

One of the Briggs children died in 1871. His share of the cotton money (fifteen hundred dollars) was thereupon inherited by his mother, his surviving sister of the full blood, Ella Briggs, and his brother of the half blood, Robert A. Giddens. In what proportion, it is not material to inquire. The other Giddens child had not then been born.

Following the death of Robert H. Armistead, his widow and heirs effected a partition of the estate. The widow and her daughter Mary Jane (Mrs. Giddens) were awarded as their share what was known as the Armistead place” — the home of the family. Mrs. Sandiford and J. H. Armistead took other property.

By this arrangement Mrs. Louisa Armistead and Mrs. Giddens acquired the Armistead plantation in the proportion of three-fourths to the former and one-fourth to the latter. As widow in community Mrs. Armistead owned in her own right (there being no debts) one-half of the whole place, or three-sixths. Mrs. Giddens, as one of three heirs, inherited one-third of one-haif, or one-sixth of the Whole. They each owned a like interest in the property which fell to Mrs. Sandiford and J. H. Armistead in the partition. The parties were effecting an exchange. The two-sixths interest owned by Mrs. Sandiford and J. H. Armistead in the Armistead place was exchanged for the interest Mrs. Armistead and Mrs. Giddens owned in the other property. The latter received, relatively to each other, the two-sixths interest of the former in the Armistead place in the same proportion that three-sixths bear to one-sixth.

Thus it was that Mrs. Armistead’s interest thereafter in the Home place was three-fourths and Mrs. Giddens one-fourth.

Mrs. Louisa Armistead died in September, 1871. She had made a will bequeathing her interest in the Armistead place to her daughter, Mrs. Giddens, but the probate of this will was successfully resisted by the other two heirs on the ground of informality, etc. This left her estate to be inherited according to law by her three children. Mrs. Giddens, as one of the heirs, inherited one-third of her mother’s interest in the Armistead place. As this interest was three-fourths, it thus appears that Mrs. Giddens, by the death of her mother, became the owner of another fourth in the property— making her the owner of an undivided one-half of the place, and Mrs. Sandiford and J. H. Armistead each the owner of an undivided fourth. •

In December, 1871, a settlement of Mrs. Armistead’s succession was effected in this wise: Mrs. Sandiford and J. H. Armistead sold to their sister, Mrs. Giddens, their interest in the Armistead place for three thousand three hundred dollars. The interest thus purchased fell into the community existing between D. M. Giddens and his wife. C. C. 242; De Sentmanat vs. Soulé, 33 An. 609.

The act of sale and transfer does not state the property thus acquired was for the separate account of the wife, nor that its purchase was a reinvestment of paraphernal funds, and there is no proof of either in the record. No cash was actually paid, but fifteen hundred dollars of the three thousand three hundred dollars was acknowledged as cash received by D. M. Giddens, being the amount due by the succession of Robert H. Armistead on account of the Briggs cotton sold as hereinbefore stated, and the succession and heirs released from liability therefor.

By this arrangement the community between Giddens and his wife became indebted to Mrs. Giddens (formerly Briggs) and the surviving Briggs child for the amount. For the remaining eighteen hundred dollars of the three thousand three hundred dollars purchase money a note was executed in favor of Mrs. Sandiford for nine hundred dollars, another in favor of Lisso & Bro. for six hundred and twenty-nine dollars and fifty-eight cents, and a third in favor of J. H. Armistead for two hundred and seventy-one dollars and forty-two cents — all payable January 1, 1873, with eight per cent, interest from date of sale. The note to Lisso & Bro. was the assumption of a debt J. H. Armistead owed them. This eighteen hundred dollars represented by the three notes was a community obligation.

In January, 1871, D. M. Giddens had purchased in his own name seventy-one acres of land adjoining the Armistead place from Tally Brown and wife. This property, purchased after the marriage, fell into the community. Its price was six hundred dollars. One-half of this sum was advanced by Mrs. Louisa Armistead as a gift to her daughter, Mrs. Giddens. Thus the community became indebted to the wife for three hundred dollars, and it is a claim now due her heirs by the community. The seventy-one acres so purchased was added to and became part of the Armistead place. This place originally embraced two hundred and ten acres. With the seventy-one acres added its area broadened to two hundred and eighty-one acres. It thus appears that in acreage the land bought from Brown (s.eventy-one acres) constituted one-fourth of what was known as the Armistead or Giddens place at the death of Mrs. Giddens.

And it appears that in value it constituted more than one-fourth, for it was appraised at fourteen hundred and twenty dollars on the inventory taken in the succession of Mrs. Giddens shortly after her death, while the original Armistead place was appraised at four thousand nine hundred and twenty-five dollars.

Mrs. Giddens died in October, 1873. Ella Briggs died in December of the same year.

Robert A. and Albert S. Giddens, sons of the first and half brothers of the latter, were their only heirs. Thus fell to them their mother’s separate estate, as well as the claim against the community for the fifteen hundred dollars due for the Briggs cotton. Also, the residuary interest (if any) of their mother in the community property after payment of the debts of the community.

The community owned at the death of Mrs. Giddens, as we have seen, one-half of the Armistead plantation and the seventy-one acres bought from Brown and added to the place.

D. M. Giddens cultivated the plantation in 1874 and 1875 for his own account, and at the close of the latter year he exchanged the whole of it for the Sprowls place owned by J. H. Beaird. He had qualified as natural tutor to his minor children, and a family meeting, convoked in their interest, recommended the exchange on their behalf.

The Sprowls place contained six hundred and forty-three acres. The Armistead place, though much smaller, was considered more valuable, and Beaird, owner of the Sprowls place, as a further consideration of the exchange, assumed payment of a mortgage indebtedness for eight hundred and seventy-nine dollars resting upon the Armistead place. This eight hundred and seventy-nine dollars was a debt due by the community that had existed between Giddens and his wife. It represented the note executed to Lisso & Bro. for six hundred and twenty-nine dollars and fifty-eight cents, and the one executed in favor of J. H. Armistead, for two hundred and seventy-one dollars and forty-two cents, when the purchase of the interest of Mrs. Sandiford and J. H. Armistead in the Armistead place had been effected in the name of Mrs. Giddens, less a small credit paid on the latter note.

The Sprowls place thus acquired by exchange became the property of the community and of the heirs of Mrs. Giddens in the same proportion that the Armistead place was..

The addition to the Armistead place of the seventy-one acres bought of Brown, all of which was community property, gave the community an excess over the heirs in this place.

The heirs can not complain if we place this excess at one-eighth of the whole, when it is considered that the seventy-one acres was quite one-fourth in area and more than one-fourth in value of the Armistead place exchanged for the Sprowls place.

For the purpose of this settlement of the community, therefore, its interest in the Sprowls place will be computed at five-eighths and the interest of Mrs. Giddens’ heirs — Robert A. and Albert S. Giddens — at three-eighths.

The community creditors must be settled with out of this five-eighths part first, and then one-half of the remainder, if any, will accrue to the heirs of the dead wife and the other half to the living husband. Durham vs. Williams, 32 An. 162.

The only community creditors now are the heirs and D. M. Giddens — the latter because of the fact that after the dissolution of the community by the death of the wife he paid debts of the community, and thereby became subrogated to the rights of the creditors so paid. Shropshire vs. Creditors, 15 An. 705; Caire vs. Creditors, 45 An. 462; Coon vs. Stringer, 14 An. 727.

The heirs jointly hold the following claims agains the community:

Amount for which the Briggs cotton sold........................................ $1,500 00
With 5 per cent, interest from the time D. M. Giddens received it, December 6,1871.
Amount received by D. M. Giddens from Mrs. Louisa Armistead and applied to part payment of the seventy-one acres of land bought from Brown ........................................................................ 800 00
With 5 percent, interest from date of purchase, January 21, 1871.
Three-eighths of $879, paid or assumed by Beaird in the exchange between the Armistead place and the Sprowls place.............................. 329 61
With 5 per cent, interest trom December 20, 1875.
Total principal......................................................................................... $2,129 61

D. M. Giddens holds the following claims against the community on account of its debts paid by him after its dissolution, to-wit:

Judgments of Julius Lisso, Galiagan, Perryman, Lisso &Bro., and Abney & Love, aggregating............................................................................... $1,426 18
With 5 per cent, interest from (say) January 1, 1874.
Amount of note given Mrs. Sandiford for her share of purchase money of interest in Louisa Armistead’s succession.......................................... 900 00
With 5 per cent, interest (say) from January 1, 1874.
(The testimony of D. M. Giddens makes it clear, we think that this note was paid after death of his wife)
Amount paid (one-half) on account of purchase of seventy-one acres of land from Brown, paid by Giddens after death of his wife................. 300 00
With 5 per cent, interest from January 21, 1874.
Total principal....................................................................................... $2,626 18

D. M. Giddens individually is entitled to no claim against the community for five-eighths of the eight hundred and seventy-nine dollars paid or assumed by Beaird in the exchange between the Sprowls place and the Armistead place, for the reason that that proportion of that sum was exclusively a community asset and was used to settle a community obligation. It was not the payment of a community debt out of his own funds.

The testimony of Giddens that other community debts than those mentioned in the act of exchange between Beaird and himself were assumed by Beaird and afterward paid by Stringfellow, when he purchased the Armistead place from Beaird, should have been ruled out on the objection made and for the reasons urged in the bill of •exceptions. Besides, we do not think it established by the evidence received that other debts than those mentioned in the act of exchange were so paid.

It is claimed on behalf of the plaintiff that Giddens is entitled to other credits than those allowed for debts of the community paid by him, but we have not found that this is made clear by the testimony in the record.

As to the plea of prescription urged by defendants against claims set up on behalf of D. M. Giddens against the community, it suffices to say that no prescription runs against claims paid by the surviving spouse, who has the administration of the property, until a liquidation and settlement of the community. Succession of Blakey, 12 R. 155; Succession of Farmer, 32 An. 1037; McKnight, Administrator, vs. Calhoun, 36 An. 408.

The separate property of the wife was not administered by her daring her lifetime. It was administered by the husband, D. M, Giddens. The debts incurred in cultivating the plantation were, therefore, community debts, and the revenues assets of the community.

After the death of the wife and dissolution of the community the cultivation of the plantation by the surviving spouse was for his own account — not that of the community, nor the heirs of the deceased spouse.

The community interest in the Sprowls place must be sold to pay the community debts as herein set forth, and the proceeds will be due to the surviving spouse and to the heirs of the deceased wife in the proportion of their respective claims.

The part accruing to D. M. Giddens, as well as his residuary interest in the community proceeds, if any, after payment of the debts, must be applied to payment of plaintiff’s mortgage claim.

It is therefore ordered and adjudged that the judgment appealed from be amended as follows: The community of acquets and gains formerly existing between D. M. Giddens and Mary Jane Giddens, his wife, is decreed to be the owner of an undivided five-eighths interest in the real estate known as “the Sprowls place,” acquired from J. H. Beaird by act of exchange executed on December 20, 1875.

It is further decreed that the community between said Giddens and his wife is indebted to Robert A. and Albert S. Giddens jointly, and to D. M. Giddens, respectively, in the sums, with interest, as herein-before stated.

It is further decreed that the five - eighths interest of the community in the Sprowls place be sold under execution to pay the said indebtedness of the community, and in the event the proceeds of the sale thereof be not sufficient to settle said claims in full that the same be applied to their payment pro rata.

It is further decreed that the payment accruing to D. M. Giddens on the indebtedness due him by the community, as well as his residuary interest in the community proceeds, if any, after payment of the debts herein recognized, be applied first to the payment of plaintiff’s special mortgage and judgment for eleven hundred dollars, with eight per cent, interest thereon from April 1, 1890, less a credit of eighty-eight dollars paid February 24, 1891, and costs of suit.

It is further decreed that, as thus amended and substituted, the judgment appealed from is affirmed, costs of appeal to be borne by defendants.

Nicholls, O. J., takes no part because of absence when case was argued.

Mr. Justice Watkins recuses himself, having been of counsel. '

On Rehearing.

Blanchard, J.

It is insisted, on behalf of R. A. and A. S. Giddens, that the judgment of the court decreeing that, in the event the proceeds of the sale of the community interest in the “Sprowls” place be not sufficient to settle the claims asserted on behalf of their father against the community, and those held by themselves, as heirs of their mother, against it, the same be applied to their payment pro rata, is erroneous, and that they are entitled to be paid the amount of their claim by preference.

D. M. Giddens himself asserts no claim in opposition to his sons. On the contrary, he is on their side of this controversy. But his mortgage creditor, Pior, tutor, asserts it for him, and is entitled to do so under the law, forcing a settlement of the community, to the end that D. M. Giddens’ interest therein, both as creditor and part owner, may be subjected to the satisfaction of his mortgage rights.

When the wife died the acceptance of the community by R. A. and A. S. Giddens, then minors, was, by operation of law, with benefit of inventory. C. C. 977. But time went on, there was no settlement of community affairs, the husband continued in possession and enjoyment of the community property, until, finally, the heirs of the wife became of age and demanded a settlement from their father. He made a settlement and turned over to them all the real property on hand, under, the pretence that it was paraphernal in character and theirs by inheritance from their mother. This is the same property that is adjudged by this court to be community property to the extent of five-eighths thereof. They received it and took possession thereof as owners, ignoring entirely the rights of mortgage thereon claimed by Pior, tutor.

On coming of age, while demanding and receiving this settlement and entering into possession of all the property as the result thereof, they failed to renounce the community. C. C. 1013, 1014, 1017, 1020, 1032, 1033, 1050, 1054, 2410, 2423; Succession of Baum, 11 R. 314. And the serious effect of this omission in cutting them off from competition with this creditor for the husband’s share of the community funds might be urged with force. Succession of Plantevignes, 28 An. 562; C. C. 988, 987, 994, 1009, 1010.

But a more equitable and legally satisfactory method of settling this controversy is at hand.

At the dissolution of the marriage, the community, as we have seen, was indebted to R. A. and A. S. Giddens in the sum of fifteen hundred dollars with five per cent, interest thereon from December 6, 1871, and in the further sum of three hundred dollars with like interest from January 21, 1871.

At the same time it owed the various creditors, mentioned in the opinion in chief, amounts aggregating $2626.18.

There was no registry of any legal mortgage affecting the community property. R. A. and A. S. Giddens could claim no priority of payment over the third persons who were creditors of the community along with themselves, The respective claims of these several creditors were, therefore, as between themselves of equal rank and concurrent against the commnnity property.

The surviving husband, out of his own funds, paid all of these outstanding community debts, except that due R. A. and A. S. Giddens, and, by subrogation, became a creditor of the community for the claims so paid by him.

Thereupon he and his two sons, being the only creditors of the community and owning together in equal proportion (he one-half, they the other half) all the community property, their respective claims against the community instantly extinguished each other, pro tanto, by compensation and confusion. C. C. 2207, 2208, 2217, 2218; Heirs of Gee vs. Thompson and Burns, 41 La. An. 353; Newman vs. Cooper, 50 La. An. —

The wife died in the latter part of 1873. Taking the first of January, 1874, as the day when this extinguishment took place, the account at that time stood thus:

Aggregate amount oí community debts paid by the husband.................. $2,626 18
The Briggs cotton claim due the heirs...................................... $1,500 00
With 5 per cent, interest from December 6, 1871 to January 1, 1874 ......................................................................... 154 00
The amount due the heirs on account of money supplied i by Mrs. Louisa Armistead and used in part payment of land bought from Brown .............................................. 300 00
With 5 per cent, interest from January 21, 1871, to January 1, 1874 ............................................... 44 00
Total due R. A. and A. S. Giddens...............,...................................... 1,993 00
Deducting this last amount from the sum of the community debts paid by the husband, a balance of.......................................................... $628 18
is left, and represents the amount due D. M. Giddens, on the first of January, 1874, by the community.

From this must be deducted the three hundred and twenty-nine dollars and sixty-one cents, being three-eighths of eight hundred and seventy-nine dollars, paid or assumed by Beaird in the exchange between the Armistead place and the Sprowls place, due the heirs as of date December 20, 1875, as shown in the opinion in chief.

This left a balance of two hundred and ninety-eight dollars and fifty-seven cents due the husband by the community, and the same is still unsettled. It is due, however, without interest. Succession of Fitzwilliams, -3 La. An. 489; Succession of Bringier, 4 La. An. 389.

The community share of the Sprowls place (see opinion in chief) must be sold to pay this balance, and the same, when realized, is tobe applied on the debt due by D. M. Giddens to Pior, tutor, and secured by mortgage on his interest in the community share of the Sprowls place; and the residuary interest of the said D. M. Giddens in the proceeds arising from the sale of the community share'of the Sprowls place, after payment of the said balance of two hundred and ninety-eight dollars and fifty-seven cents, must be applied to the payment of the remainder of the plaintiff’s claim, whose mortgage is recognized as binding upon the remaining interest of said D. M. Giddens in the community share of said property.

It is, therefore, ordered that the decree hereinbefore rendered be amended so as to read as follows:

The community of acquits and gains formerly existing between D. M. Giddens and Mary Jane Giddens, his wife, be decreed to be the owner of an undivided five-eighths interest in the real estate known as “ the Sprowls place,” acquired from. J. H. Beaird by act of exchange executed on December 20, 1875.

It is further decreed that the community between said Giddens and his wife is indebted unto D. M. Giddens in the sum of two hundred and ninety-eight dollars and fifty-seven cents, for which judgment is hereby rendered in his favor.

It is farther decreed that the five-eighths interest of the community in the Sprowls place be sold under execution to pay said indebtedness of the community, and to ascertain the residuary interest of said D. M. Giddens in said community share.

It is further decreed that the payment accruing to said D. M. Gidr dens on said indebtedness due him by the community, as well as his residuary interest in the community proceeds, be applied to the payment of plaintiff’s special mortgage and judgment for eleven hundred dollars, with eight per cent, interest thereon from April 1, 1890, less a credit of eighty-eight dollars paid February 24, 1891, and costs of suit in both courts.

It is further decreed that, as thus amended and substituted, the judgment appealed from is affirmed.

Rehearing refused.

Watkins, J., recused.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,651.
    Gustave A. Breaux vs. Bertha A. Le Blanc, Wife, Joseph A. Weber, Husband.
    Our Code declares that a partnership may be dissolved for the breach of one of its obligations.
    It declares that it may be dissolved for just cause without furnishing any interpretation of that term. Hence it is a question for the courts to determine.
    partnership is essentially a relation of mutual trust and confidence, and when they cease the engagement is virtually at an end.
    One of the members of an ordinary planting partnership having failed or refused to comply with the terms of his engagement to furnish his proportionate share of the funds necessary to carry the planting operations to completion, violates one of the essential obligations of the contract and gives to the other partner just ground for annulling it.
    APPEAL from the Seventeenth Judicial District Oourt for the Parish of Lafayette. De Baillon, J.

      Gus. A. Breaux, Plaintiff and Appellant, in propria persona (William, Campbell, R. W. Elliott and Fenner, Henderson & Fenner, of Counsel).

      Charles D. Gaffery, Joseph A. Chargois and W. 8. Parkerson for Defendants and Appellees.
    Argued and submitted December 15, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff seeks the annulment and dissolution of a planting partnership which he alleges he entered into in February, 1896, with the defendant Weber, under the terms, stipulations and conditions of an act of partnership which was signed by the parties in duplicate, and to which special reference is made — his averment being that said husband was the real partner, although, for personal reasons of his own, the name of his wife was employed and used, and he acted as her ostensible agent.

The contract of prrtnership declares that it was made and entered into on the 8th of February, 1896, between Mrs. Bertha A. Leblanc, wife of Joseph A. Weber, represented therein by her said husband under a letter of attorney, and Gustave A. Breaux, as the owner of the Oakburn plantation, situated in the parish of Lafayette, for the purpose of operating and cultivating same in sugar cane; and that same was to continue in force for a term or period of three years from the date thereof.

Said act of partnership stipulated amongst other things that said partners should cultivate and harvest crops of sugar cane, and such other crops as are usual and suitable; and that, for said purposes, the owner, Breaux, obliged himself to furnish the plantation with all such houses as then stood thereupon, “ including corn-cribs, mule stables, cabins, etc., reserving to himself the dwelling house, private stables and buildings in the yard, and lots adjoining said dwelling and yard, pasture for all animals to be used for the benefit of the place, and the stock of each (partner), except such lots as herein-before reserved. All repairs to buildings and fences to be made at the common expense.”

It further stipulates that the mules, farming utensils, carts, harness, etc., were to be inventoried and appraised, and that the planting partnership should take them at the appraisement — Breaux to receive “ credit for same as well as for mules sold.”

It further provides that all mules, farming implements, carts, harness, etc., and whatever else is bought for the place, as well as for provisions purchased for the store to furnish hands, shall be purchased by the firm.”

It further stipulated that Joseph A. Weber should give “ his undivided time and attention to the management and cultivation of the place without compensation other than such as shall be received from a division ol the proceeds of the crops hereinbefore provided.”

That the funds necessary to cultivate the said plantation shall be procured by the firm in amount not to exceed three hundred'and sixty dollars per month, until the crop is laid by, and thereafter in such amount as shall be agreed upon.”

And it contains the further express stipulation that “ no debt of any kind shall be contracted without the consent of both partners previously obtained.”

It further provides that “ all building material f.or buildings erected (on the plantation) are to be paid for by said Breaux; and that no building material shall be bought without his consent— expenses of buildings to be at the expense of the copartnership.”

The contract stipulated that J. A. Weber was to be the general overseer and manager of the firm — reserving the right of consultation to the said Breaux as to any general disposition of the place.

It provided, that Weber was “to ditch, drain and cultivate the plantation as he judges best to enable him to make profitable crops— the firm to feed two horses for Mr. Weber, which were to be used for plantation purposes.”

Finally ic specified that “ all cane crops shall be sold to the best advantage and 'for the most money obtainable and after proper expenses and liabilities of the firm are paid the proceeds shall be equally divided between the partners.” •

The foregoing are the essential stipulations of the contract of partnership which was signed by Gus. A. Breaux and Bertha A. Weber per J. A. Weber; and it was thereafter duly filed for record, and recorded according to law.

The grounds of nullity assigned in the plaintiff’s petition are substantially as follows, viz.:

1. That notwithstanding an appraisement was made of all the agricultural implements, carts, mules, etc., and said property was nominally transferred to the partnership, neither Weber nor his wife, have ever paid a single cent therefor.

2. That agricultural implements and mules were purchased for the plantation account, the plaintiff paying his share; while the defendant failed to pay his share, but on the contrary charged plaintiff’s personal account in one instance, and declined making payment in another.

3. That there are some debts due by the firm which have not been paid, because the defendant avers his inability to pay his share, though plaintiff is ready and willing to discharge his proportionate share thereof.

4. That in violation of his contract, and disregard of the rules of prudence, and without just cause, he delayed the commencement of the delivery of the sugar cane for a period of three weeks, thus carelessly and heedlessly endangering the entire crop — notwithstanding plaintiff’s protest, and in disregard of his duty as manager of the plantation for the partnership.

5. That by the defendant’s gross mismanagement the cost of the harvesting of the crop was increased fully forty per cent.

6. That in January, 1897, notwithstanding the most propitious weather, defendant ordered all plantation work to be discontinued, when he should have been using every exertion to plant cane for the crop of that year; and that in consequence of that action no portion of the crop has been planted. That, during that period of delay the defendant was daily absent from the place, to the utter neglect of the duties of his employment.

7. That in January, 1897, the defendent complained of the manner in whieh funds for raising the crop were being handled, and demanded that same should be placed in his hands for disposal; and he declared that he would not proceed any further with the partnership unless his demand was complied with — notwithstanding plaintiff’s refusal so to do on the ground that the contract of partnership does not thus provide. That thereupon the plaintiff distinctly refused to furnish any more than his proportionate share thereof and demanded of the defendant that he should furnish his share thereof, and that he must be prepared to pay his share of the January pay rolls, according to the rules governing the plantation.

And also demanded that the defendant should be ready to pay his share of the debts contracted in 1896; and that he defaulted in meeting both of said demands.

Then follows this general averment, viz.:

Now petitioner avers that, during the whole of the year 1896, and up to this time, the said Weber has persistently manifested a disposition to, and has violated the contract of partnership to his detriment; and that his conduct shows that he has persistently acted so as to render the continuation of (the) partnership impossible except on his own terms, and with a disregard of all other rights” — specifying various details of his exercise of undue and overbearing authority.

Petitioner then specifies that “ utterly forgetting the relations that should exist between partners, the defendant at great pains and with evident satisfaction,” publicly and to many persons spoke in terms of detraction of him, styling him a bankrupt and wholly incompetent for the transaction of business.

He avers that he is the sole owner of said plantation and all the property which is included in the contract of partnership, and that it is his home and the place of residence of his family. And he avers that, for the various reasons assigned, he is entitled to have the partnership dissolved and to retake the possession and control of said plantation and property.

It is upon these allegations the plaintiff asks a judgment dissolving and annulling the contract of partnership; and to prevent irreparable injury he obtained a writ of injunction.

The defendant denies all the plaintiff charges, and avers that he has at all times and in every respect been ready and able to peace - ably carry out all the provisions of the contract of partnership.

He specially denies that he ever violated any part of the contract; and avers his willingness and ability to meet his share of the pay rolls.

On the trial there was judgment rejecting the plaintiff’s demands and dissolving his injunction, and from that decree the plaintiff has appealed.

In his reasons for judgment the judge a quo makes this statement substantially, viz.:

That during the year 1896 the plaintiff succeeded in effecting a loan of six thousand dollars with which to run the' plantation during that year, and granted a lien on the crop to secure the payment — the crop yielding some five thousand dollars in net proceeds. That in the early part of the year 1897, the partners being unable to make arrangements to obtain money to enable the firm to operate the plantation for the year 1897, they each for himself sought to raise his share of the funds; and that just here arose the trouble between them.

The judge disposes of this entire matter in a few words, viz.:

“ It must be borne in mind that six thousand dollars was borrowed on the crop of 1896. That Weber swears that he did not handle any of the money. That the amount of expenses to make out and handle the crop had not been shown; and the proceeds of the crop were shown to amount to about five thousand dollars — and no accounting or settlement had been made of the result of the first year’s experience. The evidence fails to show what was the result of the venture for the first year. It was shown, and not contradicted, that Weber did not receive the proceeds of the crop of 1896.
“ Under these circumstances, friction was unavoidable, for the contract required an equal distribution of the proceeds after payment of debts. And so matters dragged on through January, 1897, when work was stopped, as stated above,” etc.

The judge does not say so, but the foregoing statement implies that the defendant was absolved from fault or blame, because plaintiff had not rendered him an account of the proceeds of the crop of 1896.

In so deciding he has evidently overlooked two very important facts: (1) that the articles of partnership bound the partners to furnish each his proportionate share of the funds necessary to operate the plantation during each year; (2) that the partners proved unsuccessful in obtaining the needed funds and the plaintiff procured, on his own individual responsibility, the sum of six thousand dollars and granted a lien on the crop to secure its payment. That the total proceeds of the crop amounted to only five thousand dollars —one thousand dollars less than the loan to the plaintiff — and yet because the plaintiff did not turn over same to his impecunious partner, Weber, and thus expose himself to the loss of the entire sum, it is suggested that “ friction was unavoidable.”

The judge in his reasons admits that “ the contract required an equal distribution of the proceeds after the payment of debts,” and not before.

Had the defendant furnished his share of the six thousand dollars, instead of the plaintiff borrowing the whole upon his own account, there would have been some propriety in his claim for an accounting.

But the judge concedes that the proceeds of the crop of 1896 amounted to one thousand dollars less than the plaintiff had borrowed, and hence the defendant was without interest in them, or any right to an account — except as a bare technicality.

In the paragraph of the reasons for judgment, which immediately precedes the one just quoted, the judge observes that “ the nonpayment of debts does not give the right to one partner to have the partnership dissolved;” but that is not the full claim which the plaintiff makes. It is that, notwithstanding the contract of partnership obliged the defendant to support one-half of the expenses of the cultivation of the crops, and to furnish one-half of the money necessary for that purpose, he had totally failed to furnish any part of the funds and expenses to make and harvest the crop of 1896, and had failed and refused to reimburse the plaintiff his portion of that indebtedness beyond the value of the crop.

That having the experience of 1896 before him, the plaintiff insisted that the defendant should furnish his quota of the funds necessary to liquidate the pay roll for the month of January, 1897; and also to pay his proportionate share of the current indebtedness of the partnership. But the defendant either failed or refused to comply with his demands.

The crop venture of 1896 proving to have been a loss instead of a profit, the defendant had no means, and it seems quite likely that he had no credit.

Under this state of facts what course was open to the plaintiff but the one he pursued, institution of a suit for the dissolution of the partnership? None. The judge in his reasons for judgment states that “ the parties being unable to make necessary arrangements to obtain the money for the firm for 1897, they sought each for himself to obtain his share for the necesssary expenses.”

But the plaintiff procured his share and the defendant failed altogether.

Again: “And so the matter dragged on through January, 1897, when work was stopped,” etc.

It was under these circumstances that this suit was filed and injunction granted on February 7, 1897, immediately after the events just recited had transpired.

This was not a mere matter of disagreement which a little forbearance would have reconciled, or a slight difference of opinion which a delicate remonstrance would have cured.

It was very much more serious than that.

The facts developed during the planting operations of the year 1896 had demonstrated the defendant’s total inability to supply his proportionate share of the funds to defray the plantation expenses; and that he was utterly without credit.

The plaintiff had risked in the enterprise his sugar plantation, and! its outfit of carts, mules and farming implements; and circumstanced as the defendant was, the plaintiff was called upon to risk,, also, the whole of the plantation expenses, for the year 1897, andi then pay the defendant one-half of the profits, if any.

In our opinion the reasons assigned by the judge, when taken in the light of the surrounding circumstances, do not justify his judgment.

In addition to the foregoing, there are several other grounds equally as fatal to the contract as the one just examined and analyzed.

One of these is, that this plantation is the home of the plaintiff and the residence of his family, and that the defendant’s systematic course of conduct toward the plaintiff and about his house was a. constant source of irritation and annoyance, whereas it should have been his constant endeavor to bring about pleasant and harmonious relations between them.

Besides this, the defendant mistreated one of the plaintiff’s personal servants; and more than once invaded the private grounds that the plaintiff had reserved to himself, and was guilty of trespassing thereon.

It would serve no useful purpose to go over any more of the details of the troubles of the partners.

Our Code declares that a partnership may be dissolved for the breach of any of th.i obligations thereof. R. O. 0. 2888; Bruce vs. Ross, 18 La. 341.

It declares that a partnership may be dissolved for “just cause,” without furnishing any interpretation of that term; hence it is a question for the court to determine for itself in any given case.

Partnership is essentially a relation of mutual trust and confidence and when they cease, the contract in effect is dissolved. Harrison vs. Tennant, 21 Beav. 482.

It is clear to our minds that the defendant is without right or interest to have the contract of partnership kept in force; on the contrary, we think equity and justice require its dissolution.

And it is so ordered.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the contract of partnership heretofore subsisting between the plaintiff and the defendant be dissolved and annulled, and the plaintiff restored to the possession of his plantation and property; and that his injunction be reinstated and perpetuated, and that all costs of both courts be taxed against the defendant — fully reserving the right of each one of the partners to an accounting and final settlement of the partnership affairs and accounts.


text:
    No. 12,542.
    W. H. Tribbette vs. L. C. Gwin et als.
    Suit having been commenced against several non-resident defendants by attachment and the garnishment of resident commission merchants, as stakeholders, a judgment pronounced against them upon traverse of their answers will be reversed if the evidence substantially shows that they have paid and satisfied the plaintiff’s demand.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J.

      Bernard MeCloskey for Plaintiff, Appellee.

      J. O. Hawkes, Curator ad hoe for absent Defendants, Appellees.

      Clegg & Quintero for Garnishees, Appellants.
    Argued and submitted December 31, 1897.
    Opinion handed down January 24, 1898.
    Opinion handed down refusing rehearing March 7, 1898.
   The opinion of the court was delivered by

Watkins, J.

This suit is directed against L. O. Gwin, E. C. Gwin and Samuel Gwin, and judgment is sought against them in solido for $2797.50, with interest and attorney’s fees.

Coupled therewith is a writ of attachment and H. & 0. Newman are made garnishers, and certain interrogatories propounded to them, and each and every one of them were answered in the negative.

Upon a rule duly taken the aforesaid answers were traversed, and upon the trial thereof a judgment was pronounced against the garnishees, as well as against the defendants, and from that judgment the garnishees have appealed.

The plaintiffs and defendants reside in the State of Mississippi, and the suit is brought upon a promissory note dated at Greenville, Mississippi, on the 14th of February, 1895,and payable at the First National Bank of Greenville, Mississippi, on the first of January after date; and its payment'is secured by a deed of trust, whereby certain movable property was conveyed and warranted to J. Newgas, trustee, same being at the time situated on the Sago plantation, situated in the counties of Washington and Sharkey, in the State of Mississippi.

There was likewise conveyed and guaranteed to said trustee, all cotton, cotton seed, corn and agricultural products which might be grown by (the makers of said note) or caused to be grown by them on said plantation, as well as all rents, issues and interests that they might have arising therefrom, growing out of said plantation, and any crops growing thereon during the year 1895,” etc.

Petitioner alleges that for the security of the payment of said note and other indebtedness, he has by the law a lien, privilege and right of pledge upon all the cotton seed, corn, hay and other agricultural products produced upon said plantation, wherever situated.

He alleges that said garnishees have in their possession and under their control certain cotton, cotton seed and other agricultural products, and moneys realized from the sale thereof, and also other moneys, rights, credits and property belonging to said defendants, or in which they have an interest, and upon which his lien, privilege and right of pledge aforesaid rest.

That said garnishees had and have full knowledge of the existence of said trust deed, the recitals thereof, and of the aforesaid trust estate, and the extent thereof, and that they have already paid him a portion thereof, which was secured thereby, but decline and refuse to pay the note sued on, which constitutes a part of same, notwithstanding payment has been demanded of them.

The interrogatories inquired of the garnishees whether or not they had in their possession, or under their control, any money, rights, credits, or other property of the defendants; and whether they were in any manner indebted to them — particularly inquiring of them as to their possession of any portion of the property covered by the trust deed, or the proceeds thereof.

To each of these interrogatories their answers were in the negative except to the last one, to which they made the following response, viz.:

That they had received and had on hand “ one hundred and twenty bales of cotton, valued at about five thousand one hundred and fifty dollars, against which (the defendants) owe them six thousand six hundred and seventy-five dollars and eighty-eight cents.

Upon the traverse of the garnishees’ answer^ the facts pertinent to the transaction were fully developed, and the following excerpt from the brief of counsel for the garnishees may well preface the statement thereof, viz.:

“ W. H. Tribbette, a resident of Mississippi, agreed to advance the Gwin Brothers a certain sum of money for the making of the crop on the Sago plantation. The indebtedness was represented by two notes secured by deed of trust.

The original deed of trust recognizes a debt of seventy-two hundred and forty-five (|7245) dollars. It was evidenced by two promissory notes of twenty-seven hundred and ninety-seven dollars and fifty, cents each, and these notes were bearing ten per cent, interest; and the third note, due January 1, 1896, for sixteen hundred and fifty dollars, also bearing ten per cent, interest.

It was understood that the two first notes represented the amount to be advanced through the National Bank in Greenville, Miss., at various times, and the remainder was for debts which were paid by Tribbette for account of the Gwins.

Some time during the year 1896 other advances were required, and the following memorandum was presented to H. & 0. Newman in order to obtain of them the necessary advances for the Gwins:

Statement Between W. H. Tribbette and S. 0. Gwin.
Gwin Dr. to Tribbette.
On crops............................................................................................................ $3,855 00
Interest on. land note................................................................................... 165 00
Miller judgment........................................................................................... 577 00
Hanover National Bank claim..................................................................... 568 00
Total .................................................................................................... $5,165 00
Ten per cent, interest.................................................,.............................. 480 00
In two notes................................................................................... $5,595 00
Due December 1,1895 ..................................................................................... 2,797 50
Due January 1, 1S96...................................................................................... 2,797 50
First interest note on land......................................................................... 1,650 00
Grand total, secured by deed of trust on crops, stock, etc..................$7,245 00

If H. & 0. Newman, or any other merchant, will make advances in order to get the commission for selling crops, Tribbette agrees to prorate on four thousand eight hundred and fifty dollars, any amount they may so advance, not exceeding one-fourth the above amount.

(Signed) W. H. Tribbette.

Not more than the above amount to be advanced.

(Signed) W. H. Tribbette.

As explanatory of that statement, the subjoined extract from the deed of trust may be appropriately considered, viz.:

“ Whereas, we acknowledge ourselves indebted to W. B. Tribbette, in the sum of seven thousand two hundred and forty-five ($7245) dollars, which is evidenced by two promissory notes on this day for the sum of two thousand seven hundred and ninety-seven dollars and fifty cents each, one due on the first day of December, 1895, and the other due on the first day of January, 1896, and the third note due on the first day of January, 1893, being for the sum of one thousand six hundred and fifty dollars; said first two notes bearing interest at the rate of ten per cent, per annum, from maturity until paid, and ten per cent, attorney’s fees, if said note is placed in the hands of an attorney for collection after default has been made in the payment thereof. The third note being for interest owing by us to W. B. Tribbette, as evidenced by a deed of trust, recorded in the office of the chancery clerk of Washington county, in Book K, p. 498, of the land records thereof, to which reference is hereby made. It is further understood that of the amount evidenced by the first two notes herein named, the said W. B. Tribbette is to advance us, through the First National Bank of Greenville, Miss., the sum of three thousand eight hundred and fifty-five dollars, as follows, to-wit:
“ Up to April 1, 1895, eight hundred and fifty-five dollars; by May 1, five hundred dollars; by June 1, five hundred dollars; by July 1, five hundred dollars; by August 1, five hundred dollars; by September 1, five hundred dollars; by October 1, five hundred dollars; and the remainder of said loan, as evidenced by said two notes, is to be paid T. M. Miller; payment of judgment and costs, five hundred and seventy-seven dollars; Hanover National Bank deed of trust, five hundred and sixty-eight dollars and seventeen cents, which are debts charged against us, and which he releases by said payment.”

The proof shows that it was on the faith of the foregoing statement and the trust deed that the garnishees undertook the business of the defendants, and received and made sales for them of the pledged cotton, the proceeds of which are in their hands — less the sums they have expended for the defendant’s account.

The testimony of the garnishees is to the effect that the written proposition of the plaintiff was, that they (garnishees) should not advance to the defendants more than one-fourth of four thousand eight hundred and fifty dollars; and that on that basis the plaintiff and the garnishees were to prorate — that is to say, plaintiff was to receive seventy-five per cent, and the garnishees twenty-five per cent. — in case the proceeds of sale were insufficient to pay both of them.

The following 'is the result of the interrogation of one of the garnishees, viz.:

“ Q. Now, this agreement here, a copy of which is attached to the petition — you saw that agreement?
A. Yes, sir; I saw that agreement.
“ Q,. So, Tribbette agreed to prorate one-fourth of the proceeds of the cotton?
“ A. Up to that time, and he was not to advance any more than the amount stipulated. In other words he was to prorate seventy-five per cent, and we twenty-five per cent.
Q. Have you paid Tribbette seventy-five per cent.?
“ A. More than that. We paid Mr. Tribbette on December 2 two thousand seven hundred and ninety-seven dollars and fifty cents — that is, we put it in his favor. On December 30 (we paid him) two thousand five hundred and thirty-four dollars and twenty-four cents. On January 20, 1896 (we paid him) one thousand eight hundred and twenty-eight dollars and sixteen cents — making a total of seven thousand one hundred and fifty-seven dollars and two cents.
“ Q. And the total cotton brought over thirteen thousand dollars?
“ A. I can not tell what the cotton brought; but I will furnish you a statement.
% * * * * its
Q. The cotton brought thirteen thousand nine hundred and three dollars and forty seven cents?
. “ A. I suppose that is right; and seven bales besides.
“ Q,. And the amount paid back?
“ A. Was seven thousand one hundred and fifty-seven dollars and two cents.
“ Q,. And he agreed to prorate?
“ A. On one-quarter.
“ Q,. He agreed not to advance any more than that?
A. Well, the agreement speaks for itself — yes, sir.
“ Q,. There was no necessity of prorating, becanse you have been paid everything?
“A. We have not.
Q. Twelve hundred and odd dollars?
“ A. We have not been paid; they owe us one thousand four hundred and forty-eight dollars and twenty cents.
Q. You would lose fourteen hundred and odd dollars. Now, have you figured out how much Tribbette, the plaintiff in this ease, would lose for the advances made by him, based upon this agreement9
“ A. I don’t think he would lose anything, because he has got seven thousand one hundred, and fifty-seven dollars and two cents, and he did not advance any more than that. And besides he has got two mules and the corn and the cotton seed; and we virtually paid him back seven thousand one hundred and fifty-seven dollars and two cents. That was all he was to advance.
“ Q. He (Tribbette) has advanced, according to this besides the amount mentioned in this agreement — was not this agreement to advance four thousand eight hundred and fifty dollars besides, the amount by which you prorated in the proportion of three-fourths to one-fourth?
“ A. Seven thousand two hundred and forty-five dollars was all that he was to advance.
“ Q. Well, Tribbette was to advance —
A. Tribbette was to advance on what he only claimed a privilege; on four thousand eight hundred and fifty dollars, as against twelve hundred dollars which we were to advance.”

This witness states further, that from the proceeds of the cotton, they honored drafts in favor of Tribbette to the amount of seven thousand one hundred and fifty-seven dollars and two cents, which leaves the defendants owing them on the 14th of April, 1896, the sum of one thousand four hundred and forty-eight dollars and twenty cents; while the balance due the plaintiff is only eighty-seven dollars and ninety-eight cents.

This witness concludes his testimony thus:

“ Q. You made no prorate with Tribbette, why was it? Was it because you considered (that) having paid him all that was called for by the deed of trust, that there was no reason for a prorate?
“A. We paid him in full. We paid him more than we agreed to prorate.”

Per contra the plaintiff’s statement is, that the note sued on for two thousand seven hundred and ninety-seven dollars and fifty cents has not been paid.

The following interrogation of this witness is worthy of consideration, viz.:

“ Q. Have you made any effort (in Mississippi) to collect the amount that is due you?
A. On the land?
“ Q,. Yes sir.
“ A. Only so far as collecting one thousand six hundred and fifty dollar note. I took deed of trust instead of selling land.
“ Q,. You have a deed of trust on the land to secure the balance due you?
“ A. Yes, sir; the balance of one thousand six hundred and fifty dollars,” etc.

This witness explains the proposition which garnishees based their transactions with the defendants upon thus:

“ The nature, terms and conditions of the prorate agreement were, that I was to advance in cash, to make the crop of 1895, three thousand eight hundred and fifty dollars (and) one thousand dollars (was) to be (advanced) on judgment and deed of trust, against notes held by Hanover National Bank and Miller, making four thousand eight hundred and fifty dollars, which was my limit in the way of advances to make the crop.
“ H. & 0. Newman (were) limited to one thousand two hundred dollars, making a total of six thousand and fifty dollars. If after paying the expenses of gathering, wrapping, ginning and marketing the crop, there was not enough left to pay the six thousand and fifty dollars, then we (plaintiff and H. & 0. Newman) were to prorate on the basis of four thousand eight hundred and fifty dollars for me, and one thousand two hundred dollars for Newman,” etc.

But while the plaintiff as a witness insists that the note sued on has never been paid, he does not deny the statement of the garnishees that they paid him in all seven thousand one hundred and fifty-seven dollars and fifty cents.

But, in corroboration of the parol testimony of the garnishees, they produced and filed in evidence exemplifications of their commercial books in response to the request of plaintiff's counsel, and they show the following entries, viz.:

1895, December 2, to W. H. Trlbbette................................................................ $2,997 50
1895, December 81, to W. JÉL Tribbette.............................................................. 2,531 24
1896, January 20, to W. IT. Tribbette................................................................ 1,828 98
Total........................................................................................................ $7,157 72

The foregoing amounts are almost identical with the items of the statement which constituted the basis of the garnishees’ dealings with the defendants, and the dates of the purported payments exactly correspond with the maturities of the aforesaid notes. And the aggregate amount of said payments is identically the same as that given in the testimony of the garnishees.

These exemplifications from the books of the garnishees were not attacked or questioned in any way, notwithstanding plaintiff had the conclusion of the case. Indeed, the garnishee was introduced as a witness on the part of plaintiff; and as he was requested to make and produce same as a part of his answers as a witness, they may be properly treated as his evidence.

In addition to the foregoing observations a casual inspection of the aforesaid statement and the deed of trust disclose that the plaintiff only contracted to furnish the defendants supplies to the amount of three thousand eight hundred and fifty-five dollars, and that the residue of the sum of five thousand five hundred and ninty-five dollars is made up of interest carried into the calculation as principal and two antecedent debts.

This sum is represented in the transaction by two notes, viz.:

One flue December 1.1895.................................................................................. $2,797 50-
One due January 1, 1896 ............................................:......................................... 2,797 50
Total....................................................................................................... $5,595 00

It is plain to be seen, then, that these two notes represented the entire transaction with reference to the crop advances for 1895— including the old debts, which are therein specified as being secured.

But the deed of trust includes and secures the additional sum of one thousand six hundred and fifty dollars, which is represented by a third note; though this debt is an old one, too, as the deed of trust fixes its date as January 1, 1898. The amount of this note, when added to the amount of the other two, as it is in the statement, aggregates the total sum of seven thousand two hundred and forty-five dollars, and the whole is secured by the trust deed; but the proof satisfies our minds that the’ garnishees have paid the plaintiff the entire sum, less a small amount, which is far less than his proportionate share of the loss which he and the garnishees sustained in the crop adventure.

Our conception of the evidence is entirely different from that of our learned brother of this District Oourt, and we therefore feel constrained to reverse his judgment and render one in favor of the garnishees.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of the plaintiff in respect to the garnishees be rejected at his cost in both courts — the rights of the defendants, whatever they are, being fully reserved.

On Application por a Rehearing.

A re-examination of this ease has confirmed our original conclusions, consequently a rehearing is refused.

But counsel for plaintiff has raised an entirely new issue in their application in regard to a certain sum of two thousand five hundred dollars of advances, which they insist has not been accounted for in the settlement.

In our opinion the settlement was complete; but, as the parties-reside in Mississippi, we will leave that matter open to further investigation.

In that respect the plaintiffs’ rights are reserved in some appropriate proceedings.

Rehearing refused.


text:
    No. 12,516.
    State of Louisiana et al. vs. Henry S. Crozier.
    In case, by the term of a criminal or a ^«aj/'-criminal statute, it is made the mandatory duty of the Attorney General to enjoin persons from violating its provisions, such injunction can not be suspended upon the defendant furnishing bond. That would be, in effect, granting to the defendant leave to continue its violation pendente lite.

    A PPEAL from the Oivil District Court for the Parish of Orleans. Bightor, J.

      M. J. Cunningham, Attorney General, for the State; F. C. Zach.arie for the Commissioner of Agriculture, Plaintiffs, Appellants.

      Walter H. Saunders, Saunders & Miller, for Defendants, Appellees.
    Argued and submitted February 12, 1898.
    Opinion handed down February 21, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The grounds stated in appellees’ motion are (1) that no appeal has been taken; (2) that even if an appeal has been taken, the order herein appealed from is not appealable.

As we consider this motion, on account of the exceptional character of the controversy, as really an answer to the appeal, we will consider same with the merits, as was done on the argument.

On the Merits:

Briefly stated this appeal is one taken by the State of Louisiana and the Commissioner of Agriculture as plaintiffs from an interlocutory judgment of the District Judge permitting the defendants to suspend their injunction on furnishing bond; and the test of the defendants’ right to bond, and of the plaintiffs’ right to appeal from an order allowing bond, is the character of the demand set up, or the irreparable character of the injury they apprehend — necessitating their injunction.

A fair synopsis of plaintiffs’ petition for injunction is as follows:

That the injunction was grounded upon repeated alleged violations by the defendant of the penal provisions of Act 72 of 1894, prohibiting any person from manufacturing or selling commercial fertilizers in this State, and from selling such fertilizers for use in this State— “ without complying with each and all the requirements thereof ”— and a demand for a money judgment for the various penalties of the statute, aggregating the large sum of five hundred and eighty-eight thousand three hundred and fifty dollars.

The following allegation of the plaintiffs’ petition fully sets out the gravamen of their complaint, viz.:

“Petitioners aver that Act No. 72 of 1894 is a criminal statute, and enacted as a measure of public policy and public order, and that under Sec. 6 of said act it is made the duty of the Attorney General, when requested by the Oommissioner of Agriculture, to enjoin any person, firm or corporation, resident or non-resident, from manufacturing or selling fertilizers in this State without complying with all the requirements of this act,” etc.

On motion of defendant’s counsel, the judge a quo granted an order allowing him to suspend the effect and operation of plaintiffs’ injunction, upon his given bond in the sum of one thousand dollars.

Alleging themselves greatly aggrieved by said interlocutory order, and averring same to be contrary to law, in that it will enable'the defendant to continue to repeat his violation of a criminal statute, they prayed for a suspensive appeal therefrom; and the court granted them an appeal and dispensed them from furnishing bond.

The purposes and objects of Act 72 of 1894, as stated in its title, are “to protect and advance agriculture by regulating the sale and purity of commercial fertilizers, and the guarantee and conditions upon which they are tobe sold, and by fixing the penalties incurred by violations of such conditions,” etc.

The penalties affixed thereby against any one who shall transgress the provisions thereof, are to be found in Sec. 6; and it also makes it the duty of the Attorney General, upon the request of the Commissioner of Agriculture to “ enjoin any person * * * from manufacturing or selling fertilizers in this State, or selling fertilizers for use in this State, without complying with each and all the requirements of this act, without bond or advanced costs.” Sec. 6, Act 72 of 1894.

One of the penalties prescribed by this act is thus denounced in that section of the act:

“Any person who shall counterfeit or use a counterfeit of the tag prescribed by this act, knowing same to be counterfeit, or who shall use them a second time, shall be guilty of a misdemeanor and on conviction,” etc.

For the present purpose it will be unnecessary for us to further analyze the act, as we think it perfectly plain and apparent that this particular injunction in the enforcement of the mandatory provisions of a criminal or quasi-criminal law can not be suspended on bond.

The question presented is somewhat sui generis, as it rests upon the special provisions of particular law; but it is very similar to the one which was presented and decided by our predecessors in City of New Orleans vs. Becker, 31 An. 644, as will appear by the following extract from the opinion, viz.:

“ On the 14th of March the city filed a petition in the same court, alleging that Becker was keeping a coffee-house with theatrical performances ; that he had been conducting this business since January, 1879, and would continue to do so unless enjoined; that he refused to pay the license tax fixed by the city ordinance, and that his conduct not onlj'- deprives the city of a certain revenue, but seriously interferes with the police of the city, and, if permitted, will be productive of insubordination and unlawful resistance to the laws and ordinances of the city.
“That for the payment of the license tax the city has a privilege and a lien on the personal property of the defendant, with the right to seize and sell the same; and the additional right to enjoin the defendant from carrying on the business until the license tax shall have been paid.
“ The prayer is for an injunction restraining the defendant from continuing to carry on the business of keeping a coffee-house with theatrical performances until he shall have paid the license tax; and for a judgment for the amount of the tax.
“ The injunction was granted as prayed for; and on the next day Becker took a rule on the city to show cause why it should not be dissolved on his giving bond as provided by the Code of Practice, Art. 307.
“ On hearing, the court refused to grant the injunction prayed for by Becker; and, also, refused to dissolve on bond the injunction granted to the city. Becker appealed from both these orders.
“ We think the court did not err in refusing to grant the injunction as prayed for by Becker (stating the reasons of the court,” and citing the paragraph of the statute authorizing the city to obtain an injunction against a delinquent license payer) ; and then follows this statement of the court, viz.:
“ The right of the city is wholly incompatible with the right of the taxpayer to enjoin the city in the collection of the license tax, or from interfering with him in carrying on his business. His application for an injunction is the refusal to pay the license tax, and would authorize the city to demand the injunction to prevent the continuance of the business. The object of the law is to enable the city to compel the prompt payment of the license tax; and that, object would be defeated if the taxpayer were allowed to take the initiative, by enjoining the city, or to have the injunction granted to the city dissolved on bond.
“ In either case he might by the necessary delays in the District Court, and by appeal to this court, successfully resist the license tax for an entire year; and thus enjoy the privilege of carrying on his business in defiance of law, without complying with its requirements.”

In our opinion that decision is quite applicable to the instant case, though it is a much stronger one for the appellees.

On this appeal the merits are not in any manner drawn in question, and hence we can not properly examine and now decide the question raised for the first time in briefs, whether the statute under consideration is or not constitutional.

With regard to the appellee’s objection that the motion for appeal does not actually make the plaintiffs in the suit parties to the appeal, appears to our minds to be too strained and technical to require discussion.

In our opinion the interlocutory order from which this appeal is prosecuted was improvidently granted.

It is therefore ordered and decreed that the interlocutory order appealed from be annulled and reversed, and the plaintiff’s injunction reinstated; and that the defendant and appellee be taxed with the costs of appeal.


text:
    No. 12,447.
    A. J. Forstall vs. J. P. Fussell et als.
    In case a promissory note is executed without any consideration actually passing from maker to the payee, and as an accomodation to the -payee, for the express purpose of enabling the latter to pledge same as collateral security for an anticipated indebtedness to a third person in pursuance of an agreement to that effect, same in the hands of the latter can be realized upon, against the maker to the extent of the secured indebtedness of the payee and pledgor and no further.
    'The forbearance of the creditor to institute suit against his principal debtor for the recovery of the amount due him is not such a prolongation of the terms granted to the principal debtor as will operate the discharge of a surety, in case he has not given his consent thereto, as the Code contemplates.
    ft PPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Beid, J.

      Frank N. Butler and Olay Flliott for Plaintiff, Appellant.

      Saunders & Miller for Defendants, Appellees.
    Argued and submitted December 31, 1897.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff instituted suit and prayed for judgment against the several defendants in solido for the sum of ten thousand dollars with interest upon the following obligation, viz.:

“ $10,000. Franklinton, La., December 18, 1890.
“ On the 15th of December, 1891, we jointly and severally promise to pay to the order of the Farmers’ Union Commercial Association of Washington Parish, La., Limited, at the American.National Bank, New Orleans, La., the sum of ten thousand dollars, with interest at the rate of eight per cent, per annum from date until paid, for value received.
(Signed) J. P. Fussell.
“A. J. Johnson.
“ P. B. Carter.
“ W. C. Binfield.
“ H. J. Simmons.
“ W. P. Crain.
“ W. L. Smith.
W. T. Williams.
“ J. Leon Pounds.”

The averment of the petition is, that for a valuable consideration he acquired in pledge from the Farmers’ Commercial Association of Washington Parish, Louisiana, Limited, the aforesaid note.

One of the defendants excepted that the petition disclosed no cause of action, and lis pendens — the latter referring to suit of same title at the time depending in the same court; and two other defendants also tender a plea of no cause of action.

The same three defendants — Fussell, Smith and Crain — fully reserving the benefit of their exceptions, filed an answer and averred that the vote sued on was given under the following circumstances, viz.:

That there was a corporation organized under the laws of the State, known as the Farmers’ Union Commercial Asssociation of Louisiana, Limited, and another corporation, likewise, organized under the name of Farmers’ Union Commercial Association of Washington Parish, Louisiana, Limited, of which latter the defendant, J. F. Fussell, was president — the former being a State and the latter a parish organization.

That the defendant, W. L. Smith, as agent of the last named corporation, the payee of said note, opened a general store in the town of Franklinton, and made advances on terms of credit to the various members of said parish union — same consisting of family and plantation supplies. That on or about the 18th of February, 1891, said agent entered into an agreement with the plaintiff, whereby the latter agreed to extend him a credit of ten thousand dollars; and, as collateral security therefor, he delivered the note sued on, together with other notes, to the plaintiff. That the note sued on was signed and delivered to said agent for the purpose of enabling him to procure the aforesaid credit with the plaintiff and obtain said advances, the defendants signing said notes, thereby becoming sureties of the. payee for such advances as were made thereunder.

On this statement the said defendants in their answer allege that said note is without consideration as to them, they not being indebted to the payee thereof in any sum whatever, at the date said note was executed, or at this time. That said note was executed purely and simply for the accommodation of the payee, and that they signed it as sureties of said corporation, and that all of said facts were well known to the plaintiff at the time of and previous to said agreement, and during the pendency of the negotiations between him and said agent which led up to its execution, and which were superintended and conducted by T. A. Clayton, as manager of the State Association.

The defendant avers that, in the course of the dealings of the aforesaid payee with the plaintiff under said agreement, the latter advanced the sum of ten thousand six hundred and thirty-two dollars and four cents, on open account, between the 10th of September, 1891, and the 23d of April, 1892; and that during that period he had received the proceeds of two hundred and forty-one bales of cotton and other moneys, the whole of which aggregated the sum of nine thousand dollars and seventy-eight cents, leaving a balance due of one thousand six hundred and fifty-one dollars and twenty-six cents by said payee.

That under the law and the aforesaid agreement said credits should be imputed to the payee’s credit on open account, secured by the note sued on as collateral, and same reduced to that balance.

They further aver that the debt of the payee of the aforesaid note on open account became due on the 1st of February, 1892, and the plaintiff, without the consent of defendants, as sureties of his debtor, prolonged the terms of payment granted it as principal, in fraud of their rights and to their great and irreparable injury — said extension of time for the payment thereof having been for a period of more than six months at one time, and for a greater length of time at another.

They aver that while professedly all of the signers of said note have been made parties defendant to this suit, yet, in reality, only the three of them who join in the answer have been cited by the request of the plaintiff’s counsel; and that the object of such a course being pursued was to deprive them of their rights — that of division and other rights against their co-sureties.

They aver that, at the date of the maturity of the debt, the aforesaid parish association, as payee, had abundant means to have paid the same, bub that at this time it has not — it being “ defunct and insolvent ” — hence they are discharged from all liability to the plaintiff as sureties.

They pray for the rejection of the plaintiff’s demands in toto.

The cause was tried by a jury, who found a verdict in favor of the defendants, rejecting the demands of the plaintiff; and from the judgment thereon pronounced the plaintiff prosecutes this appeal.

It appears from the record that the note sued on was pledged to the plaintiff, as is alleged in his petition, to guarantee the prompt and faithful payment of the advances ” he had contracted and agreed to make to the payee thereof — said contract of pledge having been made and evidenced by an act bearing date 18th of February, 1891. The act was introduced in evidence, and the exemplifications of the plaintiff’s commercial books were also produced and filed.

Many witnesses were introduced and interrogated in respect to the dealings and transactions between the plaintiff and the Farmers’ Union Commercial Association of Washington Parish, Louisiana, Limited; and each one of them makes a statement in reference thereto.

That association, or corporation, was, as its name implies, organized in the interest of the farmers of that parish and surrounding country; and it established a general store at the the town of Franklinton therein, from which it was contemplated the farmers should be supplied advances to enable them to cuitivate and harvest their crops.

In order that this plan should be carried into operation, various members of the association entered into negotiations with the plaintiff, aided and assisted by the president of the State association, and effected an agreement whereby he was bo supply advances to the parish association to the extent of ten thousand dollars.

That in order to secure the plaintiff in making said advances the note sued on was executed by the persons whose names are thereto signed — and also another note of similar character which was signed by other members of said association — in favor of the corporation; and same was pledged to the plaintiff as a collateral security for the faithful payment of its indebtedness on open account to the plaintiff when the same should become due and payable.

The act of pledge recites that “ for and in consideration of the sum of ten thousand dollars advanced by the commercial firm of A. J. Forstall to the undersigned, W. L. Smith, agent, of Franklinton, * * * and for the further consideration of services rendered and which may hereafter be rendered by the said A. J. Forstall, and for the purpose of securing him a proper compensation therefor;

I hereby agree and obligate myself to ship and consign to him for sale at New Orleans, La., not less than eight hundred bales of cotton — said shipments and consignments to be made before the first of February, 1892, and in the event of my failure, or refusal to ship and consign to the said A. J. Forstall eight hundred bales of cotton as aforesaid and within the time specified, and as an additional compensation to him for services in selling the cotton consigned to him under this agreement and other services I bind myself to pay to A. J. Forstall the sum of one dollar per bale on each bale on the number deficient in my shipments, and which are required to make the said number of eight hundred bales.”

This much of the act of pledge discloses the mutual agreement of the parties; the engagement of the plaintiff to make ten thousand dollars advances to the corporation as well as its covenant to secure the payment therefor, and also the contingent penalties it consented in his favor in case of either its failure or refusal to ship to plaintiff the full quantity of eight hundred bales of cotton.

Then follows the clause pledging to the plaintiff the note sued on, viz.:

“It is further agreed that in order to guarantee the prompt and faithful payment of said advances, the said W. L. Smith, agent, has delivered to said A. J. Forstall a promissory note for the said sum of ten thousand dollars, signed by J. F. Fussell and others, and endorsed by the Farmer’s Union Commercial Association of Washing Parish, Louisiana, Limited, and the Farmer’s Commercial Association of Louisiana, Limited, which is identified herewith, dated the 1.8th of December, 1890, and maturing on the 15th of November, 1891.”

And it concludes thus;

“ It is further agreed that the proceeds of the sale of. all cotton sold by A. J. Forstall, for the account of the undersigned, shall be appropriated by the said A. J. Forstall, either to the payment to the said sum of ten thousand dollars, advanced as aforesaid, or to any other indebtedness or liability of W. L. Smith, agent, to him which may hereafter arise in the course of their business.”

Not one of the defendants were parties to the act of pledge, notwithstanding the fact that they admit that they executed said note for the purpose of enabling the association to employ it as a collateral security for its indebtedness thereafter to be contracted with the plaintiff; and that it was primarily an accommodation paper, and issued without any consideration.

The contention of the defendants, therefore, is that (1) in any event the plaintiff’s right of recovery must be restricted to the balance of account it was intended to guarantee; (2) that plaintiff’s recourse, by the terms of the contract of pledge, is restricted to the balance which is ascertained to be due for the advances the plaintiff made to the corporation, and can not be extended to the alleged damage the plaintiff has sustained on account of any breach of contract by the corporation in reference to shipments of cotton; nor to any commissions, salaries and expenses incident thereto.

To make the position of the defendant’s counsel plain, we have extracted from their brief the following, viz.:

“ If this is not so, we would have a consequence not in contemplation of any of the parties, and entirely beyond the agreement, in any view that may be taken. It will be observed that this note was delivered to secure only the money to be advanced, not any breach of contract in relation to cotton shipments, nor commissions, nor agents’ salaries or expenses. Undoubtedly the corporation could have redeemed the paper by paying the sum of the advances, and it is equally undoubted that the accommodation makers, irrespective of notice of their character, could have reclaimed their paper on like terms. Yet, if plaintiff’s theory is maintained, he can collect the entii'e face of the note, deduct the sum it was expressly delivered to secure, and then set off, as against the accommodation payee, any other demands he may have.
“Now, as a matter of fact, the plaintiff is attempting to use this paper to enforce payment of a claim which embraces one thousand and one dollars and ninety-one cents above the amount of advance it was made and accepted to guarantee, and which he pretends to have furnished. This sum being composed of commissions, trayeling expenses and salary of an agent (fifty dollars), and five hundred and eighty-two dollars on account of cotton not shipped and insurance money paid for some unknown purpose” (p. 3).

The portion of the act of pledge upon which they rely as sustaining their position is the following, viz.:

“ It is further agreed that, in order to guarantee the prompt and punctual payment of said advances, the said W. L. Smith, agent, has delivered to said A. J. Forstall a promissory note for the sum of ten thousand dollars,” etc.

We think it is apparent from the phraseology of the contract of pledge that the plaintiff obtained the note in pledge as a collateral security for the account of the corporation, in pursuance of an understanding and agreement of all the parties in interest.

The further contention of defendants is that after the maturity of the principal obligation — the note for ten thousand dollars — on the 15th of November, 1891, the plaintiff granted the corporation, their principal, an extension of time for its payment — the association having at the time of said maturity an abundance of assets, which it offered to surrender to the plaintiff, and which he declined to accept; and that during said delay the corporation became insolvent, and its assets perished.

An attentive examination of the evidence has satisfied our minds that this last ground of defence is not sustained by the evidence. It does not go to the extent of showing that the plaintiff granted to the corporation any specific delay, or additional term, for the payment of its indebtedness. It is only to the effect that plaintiff forebore to institute suit for the recovery of the amount due. He would have been at liberty to have sued at any time; and nothing is shown to have prevented the defendants from protecting themselves, notwithstanding the plaintiff’s delay in bringing suit.

This case does not come within the rule this court announced in Insurance Company vs. Randall, 42 An. 260.

Nor does it come within the provisions of the Code, viz.:

“The prolongation of the terms granted to the principal debtor without the consent of the surety operates a discharge of the latter.” R. C. O. 3063.

Our conclusion is that the record does not disclose a state of facts justifying the discharge of the defendants, but that on the contrary, they are bound by the terms of the agreement and the contract of pledge. But, as sureties of the corporation, we think them entitled to have that agreement construed strictly in so far as it shall affect their rights, and placing upon it such a construction they can only be held bound for the balance due the plaintiff for the advances he made to the corporation and nothing else.

The stated account of the plaintiff against the corporation shows a debit balance of four thousand one hundred and twenty-six dollars and eighty-three cents on the 3d of February, 1893, after allowing proper credits, but applying the rule just stated, we are of opinion that this balance is subject to a further reduction in favor of defendants as sureties of the corporation of one thousand and one dollars and ninety-one cents, thus leaving the sum of three thousand one hundred and twenty-four dollars and ninety-two cents for which they are responsible in solido to the plaintiff.

It is therefore ordered and decreed that the verdict of the jury and the judgment thereon based be annulled and reversed; and it is further ordered and decreed that the plaintiff do have and recover from the defendants in solido the sum of four thousand one hundred and twenty-six dollars and thirty-eight cents, with eight per cent, per annum interest from the 3d of February, 1893, subject to a credit of one thousand and one dollars and ninely-one cents, as of same date, and all costs of both courts.


text:
    No. 12,448.
    A. J. Forstall vs. J. P. Fussell et als.
    ame as in A. J. Forstall vs. J. P. Fussell et als., No. 12,447, this day decided.
    APPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Reid, J.

      Frank N. Butler and Glay Elliott for Plaintiff, Appellant.

      Saunders & Miller for Defendants, Appellees.
    Argued and submitted December 31, 1897.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

This suit is of precisely similar character to the one of same title bearing the No. 12,447, with the difference that the instant one is founded upon a promissory note for the sum of five thousand dollars, bearing date November 28, 1890, and payable to W. L. Smith, agent or bearer, on the 15th of November, 1891, and signed by J. P. Fussell — one of the parties defendant who was cited in the other case — and twenty-eight other defendants who were not parties thereto.

In all other respects, the issues in this cause are the same .as those in suit No. 12,447; and the aforesaid note for five thousand dollars was pledged by the payee thereof as collateral security for the same indebtedness as that for which the ten thousand dollar note was pledged. Consequently the object of this suit is to obtain judgment in solido against the defendants in this suit for the same indebtedness.

The record and evidence in this case is the same substantially as that in suit No. 12,447; and the same briefs have been filed in this case by counsel on both sides as were filed in the suit No. 12,447.

Both the ten thousand dollar note and the five thousand dollar note figured in the former suit, which was entitled Forstall vs. The Farmers’ Union Commercial Association of Washington Parish, Louisiana, Limited, 47 An. 105, to which some of the present defendants were made parties. The exception of misjoinder of defendants was therein made and sustained upon the theory that on the face of the papers the defendants were principals; and as the makers of the two different notes were not common, they could not be used in the same suit.

In that case the plaintiff alleged that the corporation was indebted to him in the sum of four thousand one hundred and twenty-six dollars and seventy-six cents, as appears by the account annexed to the petition.”

Thatis precisely the same showing as is made in this record.

Notwithstanding that case was dismissed by this court on the ground that on the face of the papers the aforesaid notes appeared to be independent obligations, it is perfectly competent and proper that upon an examination of the pleadings and evidence we should treat the present defendants as sureties and so decide.

For the reasons assigned in suit No. 12,447, we are of opinion that like judgment should be herein rendered against the defendants as to -whom this case is at issue — in so far as the parties are different.

It is therefore ordered and decreed that the plaintiff and appellant do have and recover from the defendants and appellees, the sum of four thousand one hundred and twenty-six dollars and thirty-eight cents, with eight per cent, per annum interest from the 3d of February, 1898, subject to a credit of one thousand and one dollars and ninety-one cents as of same date, and all costs of both courts.