text:
    No. 12,685.
    H. T. Simon-Gregory Dry Goods Company et als. vs. H. & C. Newman et als.
    While fraud is never to be presumed, courts of justice “recognize the cunning concealment in which it shrouds its devious practices, and the difficulty of tracing it by direct proof.”
    Hence, they are warranted in giving due weight to ail circumstances indicating its existence, and when such circumstances and thereasonable inferences, deductions and conclusions to be drawn, from facts proven are of a character to force conviction on the mind, they are justified in' finding fraud.
    APPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      * Dorman, Reynolds & Dormán for Plaintiffs, Appellees.

      E. T. Lamkin and Percy Roberts & Boatner for Defendants, Appellants.
    Argued and submitted January 10, 1898.
    Opinion handed down May 7, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The facts and issues of this case are identical with those presented by the interventions in Suit No. 12,518 on the docket of this court, entitled H. & C. Newman vs. Baer & Levy—Crawford, Jenkins and Booth et als., intervenors, decided at the December, 1897, term.

This is a direct attack by certain creditors on the attachment sued out by H. & C. Newman against Baer & Levy in the case mentioned, which attachment was therein attacked by certain other creditors, who made themselves parties by intervention.

Some additional testimony was, in this case, adduced on behalf of the complaining creditors, which but serves to strengthen the case as presented in the earlier suit.

The conclusion arrived at in the first case, after a thorough and careful consideration, was that the judgment appealed from, which was in favor of the intervenors, was correct and should be affirmed. It was held, substantially, that a clear case had been made out of conspiracy, or fraudulent and collusive agreement and understanding, consummated between Baer & Levy and the agents of H. & 0» Newman, the object and purpose of which was the attachment of all the property of the insolvent firm of Baer & Levy, and the garnishment of their best customers and debtors, for the twofold purpose (1) of securing payment of the Newman claim through an unfair and fraudulent preference over the other creditors, exerted under cover of one of the writs of the law; and (2) of shielding the property from the pursuit of the other creditors with the view, eventually, of enabling Baer & Levy to control and utilize and derive the benefit of the same through the use of either the name of H. & 0. Newman, or that of some other person.

The case now at bar presents alike the duty and opportunity of a re-examination of the questions at issue and decided in the first case, and we rise from this re-examination with our convictions fortified as to the correctness and justice of the decree therein rendered.

Judicial records will be searched in vain for a case wherein the evidence discloses a more bold attempt to give, on the part of the debtor, and to derive, on part of a favored creditor, a fraudulent preference under the forms of the law. Nor can we call to mind a case in which the testimony exposes more thoroughly an effort on the part of an insolvent debtor to cover up and shield from his other creditors his property and assets, using for the purpose the name and claim of a' conniving creditor, who, by means of the same transaction, is to obtain payment in full of the amount due him, while his less fortunate co-creditors are despoiled.

We do not deem it necessary, in this opinion, to review anew the entire evidence establishing the collusive and fraudulent agreement and action by which this was done.

Inviting reference to the, opinion of .the court in the first case, this opinion is intended as a supplement thereof.

As part of [the fraudulent understanding between the representatives of the Newmans and Baer & Levy, it should be stated that the goods of the latter seized under thé Newman attachment, and which were valued in the sheriff’s inventory at seven thousand four hundred and twenty-seven dollars and sixty-five cents, were forced to sale at public auction (with the exception of a small lot) by the plaintiffs in that suit, on the allegation that they were of a perishable nature, and were sold in block and bought in by the agent of the Newmans for three thousand two hundred dollars. Baer & Levy assented or acquiesced in this sale in globo, which prevented the propei’ty from bringing anything like its true value, though a vigorous protest against the sale in that way, and a demand that the goods be sold in itemized lots, was made on behalf of the other creditors.

It was in the power of Baer & Levy to have demanded that the effects seized be sold separately. C. P. 261, 676.

The grounds of attachment existing when the Newmans sued out their writ must be held sufficient as between Baer & Levy and H. & C. Newman, for the reason that Baer & Levy have not contested the same, and plaintiffs herein have no interest to set aside the attach - ment except to the extent that it militates against their rights.- But inasmuch as the said grounds of attachment were part and parcel of the collusive and fraudulent agreement and understanding between Baer & Levy and the agents óf H. & C. Newman, it must be held that the same were not sufficient to sustain the attachment so far as the complaining creditors are concerned.

It is urged on behalf of H. & C. Newman that no weight or credit should be given to the testimony of H. B. Coyle, who was called as a witness for the complaining creditors.

Coyle was the managing clerk of Baer & Levy and had knowledge of the conspiracy concocted between them and the agents of H. & C. Newman, out of which was evolved the attachment complained of.

That part of the plan by which the stock of goods attached should, after being bought in by H. & C. Newman, be turned over to Baer & Levy to be utilized for their benefit under cover of the name of another — in the continuation of which business Coyle was to be employed — had failed, no doubt through the attitude of the other creditors, who threatened to take and did take action to annul the attachment for fraud. Coyle was, therefore, out of the employment of Baer & Levy, had no longer any connection with them, and no motive to conceal what he knew, or to keep back the truth in regard to the attachment and the fraudulent collusion which brought it about.

He had a claim for three hundred and twenty- five dollars for clerk hire, which rested as a privilege on the goods seized and primed that ■of the attaching creditors. He desired the Newmans to anticipate the payment of this amount, pay it themselves and hold it against the stock of goods which they had bought in at the sheriff’s sale, the proceeds of which, while nominally in the sheriff’s hands, were really retained in their own hands by an arrangment made with the sheriff.

The evidence discloses that David March, agent of H. & 0. Newman, arranged with I. Baer, a merchant at Monroe, and a friend and customer of the Newmans, to pay Coyle $100 on this claim, and Baer did pay him in money and merchandise $80 on it. Angered, no doubt, because of the delay in realizing on the remainder, and because of the dishonor of his draft on I. Baer for same, drawn by direction of A. Levy, of the firm of Baer & Levy, Coyle’s relations with Baer & Levy and the Newmans ceased to be cordial, or, perhaps, friendly, and in this condition of mind he revealed in conversation enough to the attorneys for the complaining creditors to convince them he would prove a valuable witness for their side of the controversy. They determined, therefore, to subpcena him, but it would be some time before court would meet, and Coyle, it appears, had made arrangements to remove to Wills Point, Texas, and go into business there and would shortly leave the parish. To the request to remain within reach of the process of the court until April, when court would convene, he replied he could not, as he must do something to support his family and was going to Texas for the purpose. Whereupon an offer was made to him, on behalf of the complaining creditors, to compensate him for the time he would lose by remaining in the parish and subjecting himself to the process of the court as a.witness in the case. It was several months before court would sit and the offer was to pay him three hundred dollars, part cash and the remainder by way of the cancellation of a small judgment held against him. He accepted this offer and agreed to remain in the parish and did so. He was subpoenaed and testified. The offer covered his remaining in the parish only. It was not predicated on the kind or character of evidence he was to give. He admits that prior to this offer he had proposed to the Newmans that if they would pay, or advance the amount due him for clerk hire he would be gone from the State, and would not be in the parish to testify when the case was called for trial, and Newman, it seems, had written him referring him to I. Baer, and stating that their agent, March, would instruct Baer to make arrangements to suit.” While part of the amount was paid by Baer, as we have seen, •definite “arrangements to suit,” as to the balance due, were delayed so long that meanwhile the agreement was consummated with the complaining creditors to remain in the parish and appear as a witness.

While the connection of Coyle with the transactions under review, his attitude toward the parties thereto, and his devious ways and declarations in regard to his appearance or non-appearance as a witness, can neither be endorsed nor commended, the trial judge, who saw and heard him testify, and who knew him, believed the statements he made on the witness stand, and so do we.

Besides, we find in the record abundant corroboration of much of what he testified to.

Tt is insisted on behalf of. defendants herein that the doctrine announced in this and the preceding case of Newman vs. Baer & Levy is in conflict with the decisions of this court in the Rawlins case, 45 La. An. 58, and the Claflin case, 47 La. An. 1447. We hold otherwise. In those cases the evidence showed the grounds upon which the attachments rested were not the result of combination, collusion and fraud between the attaching creditors and the-debtor, but that the plaintiff’s right to attach arose from acts of the debtor with which neither the plaintiffs, their agents or representatives, were in any manner connected.

This being so, itwas held that the consenting attitude of the debtor did not vitiate for fraud an attachment good upon other and independent and non-eollusive grounds.

In the instant case we do not think the facts unconnected with the Newmans, or their representatives, warranted an attachment. March, the agent of Newman, gives as the ground for attachment the shipment by Baer & Levy of cotton to a party in Monroe when the firm was under pledge to ship all cotton to H. & C. Newman. It was on this information that he sued' out the writ, and he says he acquired this knowledge the day before the attachment from Levy, of the firm of Baer & Levy, while in the store of the firm in the town of Bienville.

In the first place this shipment of cotton to Monroe was not, of itself, sufficient grounds for attachment. Winter vs. 'Davis, 48 La. An. 260.

In the second place, what cotton Baer & Levy shipped to Monroe was consigned to I. Baer, the brother of L. Baer, of Baer & Levy. I. Baer was not a cotton factor, or a dealer in cotton, but a retail merchant. He was the close friend of H. & 0. Newman, a large customer of theirs, and represented them in business matters at Monroe, and is the same “ I. Baer,” who, shortly after the attachment, under instructions from the Newmans and their agent, March, paid H. B. Ooyle part of the amount due Ooyle for clerk hire while in the employment of Baer & Levy.

While fraud is never to be presumed, courts do “recognize the •cunning concealment in which it shrouds its devious practices and the difficulty of tracing it by direct proof,” and giving due weight to all circumstances surrounding the shipment of this cotton to I. Baer, and the facts bearing on the same disclosed by the record, the conviction can not be escaped that it was consigned to him by prearrangement between the parties, and that the said I. Baer, in all likelihood, accounted for it or its proceeds to the Newmans.

In the third place, the testimony shows the attachment had been arranged for before March ever went to Bienville to worm out of Levy the alleged secret of the shipment of cotton, to Monroe. It appears that the attorneys had been engaged before he even arrived at Monroe, where he stopped before going to Bienville. One of them, who resided at Bienville, had been wired by the other, who lived at Monroe, to come to Monroe two or three days before the attachment was run, and he went. L. Baer, senior member of Baer & Levy, lived at Monroe and was there when the attorney arrived from Bienville and March arrived from New Orleans, and it can not be doubted that these parties, then and there, arranged definitely for the attachment, already determined on, and the going of March to Bienville the next day was really an unimportant step in the pro-gramme. As affording a glimpse at the hidden features of this visage of fraud, it might be mentioned that March, while at Bienville, had no conversation with H. B. Ooyle. Yet he was sent to Bienville to investigate on the strength of Coyle’s letter to his employers. He did not seek further information from the writer of the letter, though he was in the store of Baer & Levy while March was there. There is no need to state the inference to be drawn from this. It readily appears.

Oounsel for the Newmans urge as grounds for the attachment that Baer & Levy were converting their property into cash and negotiable assets with the view of placing the same beyond the reach of their creditors, or giving an unfair preference to some of them.

March, who, as Newman’s agent, made the oath for attachment, puts it on entirely different grounds, and well he might. After having their clerk, Coyle, to virtually notify H. & C. Newman it was time to attach, Baer & Levy instructed Coyle to proceed to close up as many' accounts as possible by notes, and the notes so taken were entrusted to Coyle’s keeping and held for easy seizure under the attachment. They were at once turned over to the sheriff when he seized for Newman, the latter’s attorney telling him they were at Coyle’s house and to go there and taken possession of them. The taking of these notes, instead of furnishing Newman with legal grounds to attach, must, in the view we take of the case, be considered part of the collusive understanding and agreement by which the way was prepared for the attachment.

Taking the notes to turn over to Newman might have been grounds for other creditors to attach, but not for Newman, for whose benefit they were taken and who actually received them through the sheriff’s seizure.

The justification of the attachments subsequently sued out by the other creditors was the preference shown or attempted to be shown the Newmans.

Judgment affirmed.


source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 12,709.
    State of Louisiana vs. Ovide Miquez.
    A PPEAL from the Seventeenth Judicial District Court for the ■C* Parish of Vermilion. De Baillon, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Chas. Fontelieu for Defendant, Appellant

      Submitted on briefs January 29, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused March 7, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

Defendant was prosecuted for burglary and larceny, convicted, and from a sentence of two years at penal servitude, appeals.

He complains of the refusal of the court a qua to quash the indictment on motion to that effect filed.

The case is identical with that of the State vs. Dartez and the State vs, Hebert and Landry, which were appeals contemporaneous with the present one and from the same parish, being Nos. 12,708 and 12,710 on the docket of this court, opinions in which are handed down with this one.

For the reasons assigned in those cases, the judgment herein appealed from is affirmed.


author: Miller, J.

text:
    No. 12,848.
    State ex rel. George F. Schminke vs. Hon. T. C. W. Ellis, Judge.
    The writ oí prohibition to restrain proceedings claimed to be in violation of the suspensive appeal wiil not issue when the judgment from which the appeal is taken is affirmed.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      James B. Rosser, Jr., for Relator.

      Dart & Neman £tnd Harold W. Newman for Respondents.
    Submitted on briefs May 21, 1898.
    Opinion handed down May 30, 1898.
   The opinion of the court was delivered by

Miller, J.

Relator applies for the writs of certiorari and prohibition to restrain proceedings he claims to be in violation of his suspensive appeal, refusing a respite to respondent’s firm, and appointing one of the firm liquidator.

In view of the fact that the litigation in which the suspensive appeal was taken has been ended by the judgments in the suits of iSchminke & Newman vs. Their Creditors, and Edgar Newman vs. 'George F. Schminke, decided to-day, it would serve no purpose to issue the writs even if the relator had any claim to the relief sought.

It is therefore ordered, adjudged and decreed that our former order on this application be set aside, and it is now ordered that relator’s application be denied at his costs.


text:
    No. 12,722.
    City of Lake Charles et als. vs. Police Jury of Calcasieu Parish et al.
    The police jury in the exercise ol the power oí taxation with which it is clothed under the Constitution and laws, met by the claim of a municipal corporation that part of the parish has been detached and added to the municipal corporation, is not suspended in the exercise of the power of taxation by such claim of the city, hut may levy the parochial taxation and thus present for judicial determination the conflicting pretensions of the city. Constitution, Arts. 249, 250 et seq.; Act 1892, No. 105; 47 An. 589.
    The prescription of personal actions can not be applied to deprive a political corporation of the function of taxation vested in it by the Constitution, and which the corporation can not surrender.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.

      J. D. Cline, City Attorney (Paul A. Sompayrac of Counsel), for Plaintiffs, Appellants.

      A. P. Mitchell, District Attorney, E. L. Wells and Williams & Sugar lor Defendants, Appellees.-

      Argued and submitted February 9, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Miller, J.

The appeal is by the plaintiff from the judgment dismissing its suit to enjoin the defendants from collecting parish taxes within the territory claimed to have become part of the city of Lake Charles under appropriate proceedings for the annexation of such territory.

In 1884, proceedings were conducted under the Act No. 110 of 1880 for the extension of the limits of the city of Lake Charles so as to take in the territory within which the police jury now asserts the right to levy parish taxes. The annexation was deemed accomplished under the act of 1880. But this court reached the conclusion in 1895 that the act of 1882 conferred no warrant for the annexation of territory to the area of towns and cities. Police Jury vs. •Shayot, 47 An. 589. Yet acting on the theory of the validity of the proceedings in 1884, the city of Lake Charles from and after that date •seems to have levied taxes on the territory in controversy, extended ■streets through it, and exerted within the territory the functions of municipal government. In 1892, the Legislature enacted the statute to authorize the extension of the limits of cities and towns. Act No. 105, Session Acts, page 105. In 1894, proceedings were renewed by the City for the inclusion within its limits of the territory sought to be added in 1884, but it is charged by the police jury •of the parish of Calcasieu, from which the territory is taken, that the proceedings under the act of 1892 are wholly void, because of nonobservance of the requisites of the act. In this condition the police jury, in 1897, directed the assessment of parish taxes on all property in the area claimed to have been brought within the city limits by the annexation proceedings. Thereupon, the City instituted this suit to enjoin the police jury from causing to be assessed for taxation and from enforcing taxation on the property within that area.

The petition substantially charges that the parish authorities are •seeking to collect taxes on property within the limits of Lake Charles, not subject to parochial taxation, and asks for an injunction against this alleged usurpation of authority by the police jury. Omitting exceptions unnecessary to be considered, the defence to the suit is substantially, the invalidity of the proceedings by which the City claims the addition to its limits; hence it is insisted, the disputed territory, part of the parish of Calcasieu, is now as it has been at all times, subject to.the taxing power of the police jury, and these defences prevailed in the lower court.

The argument for the City insists that the act of 1892, authorizing the extension of the limits of cities and towns, the presumption is in favor of the validity of the proceedings under that act, and that the power of the» City to exert jurisdiction within the territory in controversy can not be collaterally attacked by the police jury as it seeks to do in this suit. The authorities cited in this connection have had our consideration. Under the facts of this ease we have reached the conclusion, the taxpayer can contest by injunction the levy of taxes asserted or derived from proceedings to annex territory to cities and towns. To that decision we refer. Dees vs. City of Lake Charles, just decided.

We have in this case, as plaintiff, the police jury of Calcasieu, a portion of which is the territory claimed to have been added to Lake Charles. The police jury clothed by the Constitution and laws' with the power of taxation, in the exercise of that power is met by the injunction of Lake Charles, and the assertion that part of the parish has been withdrawn from the jurisdiction of the jury, and added to the city by proceedings to which the jury was no party, and claimed to have been consummated under the act of 1892. Can we hold that the jury is excluded from the power of taxation with which it is vested, merely because of this claim on the part of the city, or at least that'the police jury must first resort to a direct action to test the validity of the annexation proceedings on which the City relies, or that the jury must seek the aid of a suit by the Attorney General to determine that question before the jury can exert its functions. One phase to which the argument leads is that the citizen may be subjected to tax levies both by the City and by the jury. Of course, we do not not deal with that limited concurrent power of taxation that may be exerted both by city and parish within city limits, but with that taxation that must be exclusive in the city or parish. The same line of argument that undertakes to deny to the jury any right to question the power of the City to levy taxes equally applies to the citizen. He may be condemned to pay to the jury and when the conflicting right to tax is asserted by the City he is not to be allowed to call its rights in question. We put this consequence of maintaining the theory of the plaintiff’s case merely as illustrative. We have considered the subject carefully, and have given the reasoning in the Dees case on which we found the conclusion that under the act of 1892 the citizen can question the validity of the annexation proceedings. We do not feel at liberty to apply a different rule to the police jury. We can not hold when the jury in the exercise of its powers encounters the claim of a city or town that part of the parish has been detached for all purposes of parochial taxation and brought within the limits of the City, that the parish must desist, accept the pretensions of the City, or invoke the other method of procedure the argument supposes to be necessary. At least, we hold no such procedure is necessary under the circumstances shown by the record of a municipal corporation claiming jurisdiction for years over the disputed territory with absolutely no law to sustain the claim, and when, as it seems to us, the attempt under the act of 1892 to accomplish the annexation treated the act as directing curative proceedings, though it had no such purpose. Instead of the preliminary petition required by the act, there is a petition signed by parties residing in the city as well as by those residing in the territory to be added, with no satisfactory proof that these last, i. e., the number required, ever petitioned for the annexation, and instead of two elections separately held, there is, without the slightest warrant in the act, an election held of the electors of the city and of the electors of the territory sought to be annexed. As we read the record there is no adequate proof of a majority vote for the annexation, cast by the electors of the territory to be added; nor of the expression of the voters in the city, if indeed the method of voting admitted of any such proof. It seems to us that the contrast between the proceeding in 1884 and the requisites of the act of 1892 is too marked to admit the least sanction under that act to the attempt at annexation in 1894. In our view the 'city has failed to sustain its demand. The Act No. 110 of 1880 gave no authority for the asserted extension. The act of 1892 was on the statute book when the proceedings for the extension were concluded at the latter period, but as already indicated there was no compliance with the act.

The city has pleaded the prescription of ten years, and the closely connected defence of estoppel is pleaded, both defences founded on the administration of the city over the disputed territory. We can not apply prescription to deprive a political corporation of governmental functions incapable, in our view, of surrender. The textbooks and decisions of other States in which cases have arisen under statutes like ours recognize, under certain circumstances, an estoppel of any question by the individual of the existence of the municipal government under which he lives, and by which he has been benefited. We reach the conclusion in Dees vs. Lake Charles there is no basis in that case for the estoppel of the taxpayer, and in our examination we have given full weight to the authorities cited by the city. We can not find the basis to hold that the police jury is estopped, or could by any act or conduct preclude itself from exerting its functions of government, that is to say, from levying the taxes for the present and future, but we reserve and express no opinion as to the right of the jury to assert at this period the power of taxation of property in the disputed territory the jury has not exercised for some years.

We have given careful attention to this and that of Dees against the city. If we have not dealt specially with each phase of the argument and authorities cited on behalf of the city, none the less the case, in all its aspects, has had our full consideration, but we have deemed the decision controlled by the views expressed in this opinion. We are deeply sensible of the inconveniences that may result, but find no escape from remitting the city to appropriate proceedings for the annexation sought in 1884, without any law for it, and again attempting in 1894, without conforming to the requisites exacted by the act of 1892. Our decision will at least carry the compensating benefit of settling a question of embarrassment to the parties in the past, and apt to cause trouble in the future, unless adjusted in the mode open to the city of complying with the act of 1892.

It is therefore ordered, adjudged and decreed that the judgment of . the lower court be affirmed with costs.

Watkins, J., in a written opinion dissents.


text:
    No. 12,462.
    George W. Taylor vs. Almanda & Bro.
    The court again affirms that the amount claimed by plaintiff is the test of jurisdiction of this court of the incidental demands. 11 La. R. 463; 8La. 167.
    The plaintiff suing on the commutative contract can recover for partial performance, but the measure of recovery is necessarily not the contract price, but the benefit the proof shows the defendant derived from the partial performance. 3 La. 1; 4 La. 465; 7 La. 134.
    An attachment will not lie of funds brought within this jurisdiction of this court to pay the debt binding on the attaching creditor and which payment he seeirs to defeat by his attachment. .
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      E. W. Huntington and Edward Barrett for Plaintiff, Appellant.

      Lamar 0. Quintero for Defendants and Appellees.

      Wm. G. Dufour and Geo. W. Moore for A. G. Slangerup, Intervenor, Appellee.

      Dart & Kernan for Thomas Killeen, Intervenor, Appellee.

      Ghas. J. Théard and John Glegg for Liquidators of the Bank of Commerce, Intervenors, Appellees.

      John Dymond, Jr.,,for Barthelemy, Intervenor, Appellee.
    Submitted on briefs December 3, 1897.
    Opinion handed down December 28, 1897.
    Rehearing refused April 4, 1898.
   The opinion of the court was delivered by

Miller, J.

The appeal is by plaintiff from the judgment dismissing his suit and accompanying attachment for the amounts claimed to be due him on his contract to furnish defendants with a sugar mill and appurtenances, and for extra or additional machinery he alleges was obtained from him by defendants.

The contract made by W. R. Taylor, “agent,” with defendants provides that the mill on the Rosehill plantation is purchased by them from Taylor; is by him to be shipped to defendants in Mexico, the price, ten thousand dollars, to be paid one-half cash when the contract is signed, the residue in eqnal instalments, one in sixty days and the other when the mill is erected on defendants’ plantation, Taylor to provide the engineer for the erection of the mill, and defendants to furnish certain materials and fulfil other obligations incident to the putting up of the mill. The defendants supposed Taylor was the owner of the mill, but it transpired afterward he was not, but had an agreement to buy from the owner of the plantation on which the mill was placed. The defendants complained of delay, in executing the contract, and with greater reason as they conceived because on the faith of it they had paid W. R. Taylor the greater portion of the ten thousand dollars. When defendant learned not only Taylor was not the owner of the mill, but having an arrangement to buy it had not completed its purchase, they became alarmed, not only for their crop dependent on the mill for which they bad contracted, bnt apprehensive of the loss of the large amount of their money paid W. R. Taylor in advance of any delivery. Thereupon, defendants employed an attorney, brought about a meeting of W. R. Taylor and the mill owner anxious to sell, but unwilling to deliver the mill without payment of the price, and this action of defendants, and their vigorous demand that the mill owner should be paid at once by Taylor, and for the fulfilment of his contract to ship the mill, resulted in his payment for the mill and its shipment to defendants late in the fall and more than ninety days after his contract. The mill appurtenances included in Taylor’s contract were to be made by the machinist employed by Taylor, and defendants about the same time they ascertained the cause of the delay in delivering the mill, learned also that the machinist not paid, would not deliver the appurtenances without payment. Thereupon, after some discussion and an effort to obtain the appurtenances, the defendants'were compelled to give their notes to the machinist for the amount due by Taylor on his contract with the machinist. After all this action on the part of defendants in respect to the mill and machinery Taylor had bound himself to furnish, the property was finally shipped to defendants’ 'plantation in Mexico. Defendants-have provided the funds here to pay their notes, but Taylor through his agent in Mexico urging defendants to remit the funds for payment of the notes and informed as soon as it was made of the bank to which the money was sent, attached the funds when they reached here and thus seeks to defeat their application to pay the notes. This brought forward the note holders to resist his pretensions by their interventions in this case. They aver their right to-the funds under the facts and the instructions to the bank accompanying the remittance, and they aver that W. R. Taylor and his principal are estopped from contesting the application of the remittance to pay the notes. The controversy thus presents the issues of the right of plaintiff to recover on his contract with defendants, and whether the plaintiff can attach the funds remitted under the circumstances shown by the record to pay the debt Taylor was bound to pay and for which defendants by his default had to provide.

The plaintiff in his petition charges defendants with the contract price, ten thousand dollars, and with' items for alleged extras claimed to have been furnished defendants; he gives them credit for seven-thousand two hundred dollars, paid by them and for the notes they gave, and sues for the residue, two thousand four hundred dollars, he alleges is due. The defendants deny the execution of the contract; allege there was no contract with plaintiff, that he is merely interposed by the real party to the contract, W. R. Taylor; there is the averment of losses sustained by defendants by the non-execution of the contract on which plain-tiff sues, and the defendants reconvening claim heavy damages. The note holders in their interventions allege the circumstances under which defendants issued their notes and remitted the funds for their payment, aver their right to the funds and that plaintiff is estopped by his conduct from levying on the funds under his attachment.

There is a motion to dismiss plaintiff’s appeal, and in support of this dismissal it is urged the amount involved is below the jurisdictional limit of this court. The motion overlooks the amount claimed by plaintiff in excess of two thousand dollars, which carries jurisdiction of the incidental demands. Buckner & Robinson vs. Baker, 11 La. 462; Hart vs. Lodwick, 8 La. 167; Colt vs. O’Callaghan, 2 An. 189; Guion vs. Brown, 6 An. 112.

A great portion of the voluminous testimony put into this record is devoted to the propositions that defendants had no contract with plaintiff, but dealt with W. R. Taylor, and that neither owned the mill stipulated by the contract. All this testimony and the,discussion on these points may be laid out of view. One may contract in his own name for another, who may sue to enforce it. Defendants are without interest to inquire into the relations between plaintiff and W. R. Taylor, which it is claimed accounts for the contract in Taylor’s name, described as agent.” It is enough for defendants that, whether sued by Taylor or his alleged principal, they are deprived of no defence. The fact that at the date of the contract Taylor did not own the mill, had agreed to buy it for a price less than the defendants were to pay, can exert no influence on the main issue whether he executed his contract to deliver the mill to defendants.

The plaintiff who sues to enforce the commutative contract must show performance. Taylor’s obligation was to deliver, i. e., ship the mill and appurtenances. Defendants were to pay part cash and the residue in sixty days, and the final payment when the mill was erected. It is claimed by plaintiff there was no default because the mill had to be taken down and prepared for shipment on the plantation. That it seems to us furnishes no answer to Taylor’s entire omission to pay for the mill he had bound himself to furnish until defendants’ action compelled that payment by him; nor is it less impressive on this branch of the case that in the long interval from the date of the contract to the compelled payment, the mill owner refusing delivery without payment, was under the impression the delay in paying him was owing to defendants’failure in their payments to Taylor, when in point of fact he had received a sum from defendant in excess of the requirement of their contract. Obtaining their money on the faith of his contract, and not paying a dollar on the mill until their action brought forward the mill owner, and constrained payment to him, exposed defendants not only to the risk of serious injury to their crop dependent on the mill, but to the loss of their money in his hands, and to serious annoyance and trouble. All this we must consider in connection with the issue he tenders of the faithful execution of his contract. He stands in a still more unfavorable attitude in respect to the mill appurtenances. All he did toward executing that part of his contract was to employ the machinist. He says he paid him, but in this he is directly contradicted by the testimony of the machinist, if we do not err in our appreciation of that testimony. It is quite certain Taylor never obtained the machinery, nor made the slightest effort to get it. It is equally certain the machinist would not deliver without payment, and defendants had to give their notes afterward, providing money for the payment, to get the machinery included in his contract and indispensable to the mill. In his account he credits defendants with the notes, not at all consistent with his attempt to seize their money forwarded to pay the notes. Bnt the credit is not the equivalent of performance of his contract. In our opinion the plaintiff fails on the issue of performance of his contract.

Our attention has been directed to the line of authorities that entitles the plaintiff to some recovery when he shows partial performance of the commutative contract. Our jurisprudence on the subject is defined. When there is a partial performance the recovery is not the contract price, but is measured by the benefit of the part performance. Loreau vs. Declouet, 3 La. 1; Etie vs. Sparks, 4 La. 465; Dyer vs. Seals, 7 La. 134. If it is claimed that the shipment of the mill, brought about by defendants’ efforts to avert tbe serious consequences with which defendants were menaced by the course of W. R. Taylor, is part performance, we are confronted by the fact that defendants have paid out on the contract seven thousand two hundred and thirty-seven dollars, and that their notes are extant for one thousand seven hundred and seventy-five dollars for the machinery. This view omits all consideration of trouble and expense of defendants, well calculated to grow out of the course of W. R. Taylor in reference to this contract. We fail to find iñ the record the basis of benefit derived by defendant, on which we can adjudge defendants liable over and above the amounts paid and that for which they have become liable by reason of the contract.

The conventional demand of the defendants is not pressed. The demand of plaintiff for machinery beyond that embraced in his‘ contract is not exhibited by the testimony, not at least with the certainty on which we can have any judgment. It appears that in an effort to adjust the claim for this extra machinery it was proposed to award five hundred dollars for that claim. It does not appear that defendants assented to it, and plaintiff does not claim the award. In our view on this part of the case there should be a judgment of non-suit.

To maintain the attachment of the funds levied on in this case, it is urged the note holders for whom defendants made the remittance acquired no right to the funds merely by the remittance. Armor vs. Cockburn, 4 N. S. 667; Oliver vs. Lake, 3 An. 78; Hill, McLean & Co. vs. Simpson, 8 An. 45. Our conclusion that plaintiff has no demand against defendants renders unimportant- the discussion of his right'to attach the funds under the circumstance of the remittance ; but it is not inappropriate to say the applicability of the funds to pay the notes and the exclusion of any interference by the plaintiff’s attachment rests on grounds beyond the scope of the authorities that maintain the creditors’ right to attach until the owner of the property has lost control. The notes were given to the machinist to pay the debt that should have been paid by Taylor, and the money is remitted to pay the notes. Of this he was well aware and has treated the notes as payment of the debt he owed the machinist by giving defendants credit for the'notes. His attachment in effect seeks to defeat the payment of his own debt, the provision for which was made with full knowledge and of the benefit of which he has availed by the credit he gives. Again, if his attachment prevailed, his attachment as a breach of duty to plaintiffs would be attended with the serious consequence of leaving them liable on their notes. Still less can an attachment be maintained by one who has contributed to bring the funds within that jurisdiction by influencing the owner to send here for a purpose the attachment would completely defeat.

It is therefore ordered, adjudged and decreed that as to plaintiff’s demand in his supplemental petition for “ extra” or additional machinery there be judgment of non-suit, and in all other respects the judgment of the lower court be affirmed with costs.


text:
    No. 12,648.
    Abbot L. Dees vs. City of Lake Charles.
    The citizen sued for taxes by a municipal corporation claiming power to levy taxes on tlie territory embracing his property under the proceedings by •which the territory is alleged to have been annexed to such city may resist the collection of the taxes by injunction when there is no law to authorize the asserted proceeding or when at a later period the requisite law is enacted, bu the record shows no substantial compliance with the statute in the proceedings on which the corporation relies. Act No. 110 of 18S0; 47 An. 589;*Act No. 105 o£ 1892. *
    A PPEAL from the Third Justice Court for the Parish of Calcasieu. 'J. A. Kinder, J.

      Randall H. Odom for Plaintiff, Appellee.

      Jerry D. Cline, City Attorney, for Defendant. Appellant.
    Argued and submitted December 15, 1897.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment maintaining the injunction obtained by the plaintiff, restraining the collection of taxes on his property assessed by defendant.

The ground of plaintiff’s suit is that the limits of the city of Lake Charles are fixed by the charter of the city granted in 1867; that his property is beyond those limits; that the corporate authorities have illegally levied taxes on plaintiff’s property under color of certain proceedings for the extension of the city limits, and these proceedings are attacked as affording no warrant for the levy of the taxes sought to be enjoined. The defendant excepted to the suit on the ground that since its institution the taxes had been paid by a citizen, and hence, there was no longer any subject of controversy; it is also claimed the plaintiff is estopped from contesting the annexation because of benefits derived by him from the City as extended, and the defence insists that the city limits have been extended so as to embrace his property, and that these proceedings can not be assailed by him in this form of controversy.

If the plaintiff had a cause of action against the city, it seems to us his suit is not to be dismissed because a third party without the consent or knowledge of the plaintiff pays the tax, the collection of which plaintiff enjoins. We think the motion to dismiss, on this ground, was properly overruled.

An examination of the testimony on the defence of estoppel, does nob impress us as exhibiting any satisfactory grounds on which estoppels from conduct are usually derived. The plaintiff was a minor in 1894. As we gather he voted at a municipal election in 1895, hardly sufficient to conclude him, and if our appreciation of the testimony is correct, the ward in which he lived was composed in part of the domain of the original city. We are sensible there are cases in which the individual may be estopped from contesting a tax or contribution for some special benefit- he has derived. We find in the record no basis of that nature to hold' plaintiff liable for the tax he resists. The asserted advantage he in common with others is supposed to have derived by the inclusion of the property within the city limits is insufficient, to hold him bound. These exceptional cases in which the citizen may be bound for particular benefits conferred on his -property are, of course', nob within the scope of this opinion or decree.

It is urged that a municipal corporation claiming to have enlarged its territory in accordance with law, is protected from collateral attack upon the corporate capacity it asserts. The proposition we are called on to affirm, varied in form, is that notwithstanding the conditions prescribed by law for extending the limits of towns and cities, there can be no denial by the taxpayer or citizen of the corporate capacity, when the municipal corporation urges its demand against him based on the extended jurisdiction claimed by the corporation, bub conferred upon it only on the conditions exacted by the statute. The extension of the limits of towns and cities involve not only the interests of the citizen, but political consequences of importance. Such extensions diminish the territorial jurisdiction of parishes placed by the organic law under the control of the police jury. Constitution, Arts. 249, 250, et seq. The boundaries of parishes can not be changed except in the mode pointed out by the law, bub on the argument advanced in this case the territory of the parish must be deemed to be curtailed whenever any municipal corporation, within its limits points to the law authorizing the extension of corporate limits on certain well defined conditions, and avers compliance with the statute. If the municipal corporation is on the parish line, the same line of argument would maintain that the boundaries of contiguous parishes must be accepted as altered, whenever the municipal corporation avers an extension of its limits into an adjoining parish and holds up this

act of 1892, whether or nob complied with. Ou this theory, too, we are asked to affirm that the citizen, without his consent, is to be transferred from the parochial jurisdiction with which it may be he s entirely content, to auother jurisdiction, that is of the municipal corporation, and its mere claim of absorption of the territory in which the dissenting citizen resides, is to close his mouth and silence his objection that the asserted extension of the city limits is utterly destitute of legal sanction. Changes of territorial jurisdiction, 'directed by the Legislature, whether by the creation of municipal corporations, or of parish lines or other changes in the distribution of territory between the old and new organizations, often carry results deemed burdensome to the citizen; bub he must submit to the legislative disposition of a subject deemed polioical in its character. See Cooley, Constitutional Limitations, p. 500; Layton vs. Monroe, 50 An. —, nob reported. Our Constitution has restricted even the power of the Legislature on this subject (Art. 250). Bub the argument pressed on us is substantially that the changed jurisdiction of the domicile of the citizen with different instrumentalities of local government, of varied, and it may be increased taxation of his property and similar consequences incident to transferring the citizen without his consent from one to another jurisdiction, are all to be forced on him whenever the municipal corporation advances the claim of extended jurisdiction and asserts compliance with the law permitting no such extension, unless the conditions are observed it so explicitly exacts. Compliance with these conditions in the interest of the public as well as of the citizen, he is not to be permitted to question. The claim of the de facto corporation and the existence of the statute is to stand in place of performance of all the conditions of the statute. With full appreciation of the scope of the legal principle the basis of the exclusion of collateral attack on asserted charters, we can not give it the application contended for by the City. In our opinion such an interpretation would go far to render nugatory the act of 1892 in respect to the conditions it enacts for the extension of cities and towns. There would be no protection for citizens or parishes invoking the statute against unfounded claims of extended limits by cities and towns. We affirmed at this term the right of the citizen to arrest illegal proceedings of a city council for the enlargement of city limits. Layton vs. Monroe, 50 An. In The Police Jury vs. Lake Charles, decided to-day, we recognize the right of the parish to assert its jurisdiction of the territory in controversy in this suit without the necessity of first seeking the aid of the Attorney General in a direct suit brought by him. With the most careful consideration, our conclusion is that the plaintiff is not excluded from his right of action to protect himself against taxes claimed to be levied without warrant of law.

We have considered the proceedings by which the enlargement of the lands of Lake Charles is claimed to have been effected. This •extension, attempted first in 1884, was abortive, because there was no law to authorize it. We adhere to the conclusion that the Act No. 110 of 1880, authorizing the amendment of city charters, afforded no warrant for the addition to Lake Charles sought to be accomplished in 1884. The Act No. 105 of 1892 carefully prescribes the mode of enlarging the territory of cities or towns. The preliminary •step is the petition to be signed by one-third of the owners of property within the territory contiguous to the city, proposed to be added. The petition in this case came from residents of the city, i. e., the ■original city as well as of that territory proposed to be added, but which seems to have been treated as part of the city. As might be «expected, the petition, not as contemplated by law, from owners •exclusively in the proposed addition, but indiscriminately signed by residents of the original city or as claimed to be extended, would make it difficult to ascertain whether it contained the signatures required by law. The plaintiff claims the proof' not only fails to -show the requisite signatures, but affirmatively shows that the prescribed signatures were not obtained. An examination of the testimony fails to satisfy us this requisite was complied with. Upon that all subsequent action under the statute depends. Layton vs. Monroe. Without observing the first requisite the later proceedings exhibited a wider departure from the statute. By its terms successive elections are to be held to ascertain the sense of the people in reference to the proposed extension, one by the electors in the territory proposed to be added, the other by the electors in the city to which the addition is to be made. But one election was held, and that by the electors of the city, the addition treated as part of it, before, under the law, it could become part of the city. At an election thus held, while it appears a majority vote was cast, it must be accepted as difficult to show that a majority of those residing in the proposed addition was obtained for the extension. Nor do we find any satisfactory testimony that such majority was obtained. It seems to us without more, there was no compliance with the act of 1892, least of all a substantial compliance. There seems to have been the idea that the proceedings in 1894 were curatives, or in the nature of a ratification of the proceedings in 1884. At the election, such as it was, the amendments to the charter of the city, as claimed to be extended, was submitted, not the single issue of extension to be voted on separately at two successive elections. Manifestly, the act of 1892 had not the least retroactive effect, nor was it curative.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.

Mr. Justice Watkins — For the reasons assigned by me in the case of The City of Lake Charles et als. vs. The Police Jury of Calcasieu Parish et al., No. 12,722, just decided, I dissent in this case.


author: Breaux, J. Blanchard, J.

text:
    No. 12,661.
    Bayne & Onorato vs. Angelo Cusimano, doing business under the name of G. Grande & Co.
    Ox Motion to Dismiss Appeal.
    Motion-was made to dismiss the appeal on the ground that the order dismissing the writ of attachment was interlocutory and did not work irreparable injury.
    That the appeal should not be heard prior to an appeal on the merits of the cause.

      Held : The judgment was in nature final enough to sustain an appeal, and that an appeal may he taken from an interlocutory order which dissolves an attach* ment and releases plaintiff’s grasp on the property attached.
    Unquestionably plaintiff has the right to be heard on appeal in matter of tlie decree dissolving the attachment.
    The only question is prematurity, non; there being a necessity, if the attachment issued properly, of preserving a right exposed to loss, the appeal is not premature.
    On the Merits.
    ■Question presented: Can an individual member of a copartnership become surety-on an attachment bond executed by his firm as principal? Is he such surety as the law contemplates on a bond of that character?

      Held : He is not competent as surety.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Hughes & Favrot for Plaintiffs, Appellants.

      E. A. O’Sullivan and E. Howard MeOaleb, Jr., for Defendant, Appellee.
    Submitted on motion to dismiss November 29, 1897.
    Opinion handed down December 13, 1897.
    Argued and submitted on the merits March 10, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

On Motion to Dismiss the Appeal.

Breaux, J.

After the trial on a rule to dissolve the writ of attachment which had been issued, a judgment was rendered dissolving the writ of attachment.

A suspensive appeal was taken to this court from the judgment of the District Court.

In this court the defendant and appellee moved to dismiss on the ground that no appeal lies from an interlocutory order dissolving the writ of attachment, and that the interlocutory order dissolving the attachment does not cause plaintiffs any irreparable injury.

On the trial of the rule the facts upon which the plaintiffs rested to sustain their attachment were made to appear in evidence.

On the other hand, the defendant contended against the position of plaintiff in attachment and introduced his evidence.

The suit in so far as relates to the attachment was tried upon its merits and the rights involved in the controversy were determined adversely to the plaintiff.

The merits of the cause were not placed at issue; the rule filed was a preliminary proceeding in the case and the judgment on the rule was interlocutory; nevertheless the decision may have included a right of as great importance as any which can possibly be involved on the final decision.

The judgment dissolving an attachment, placed at issue as this was, may be considered, in some respects, at least, as in the nature of a final decree. The issues had been as related to the attachment passed upon by the District Court. The judgment did not have the effect of dismissing the personal action, yet'it brought to a close and terminated the possibility of recovering anything on the property which had been attached. Moreover, if the plaintiff were to gain his suit for the amount he claims, there would be no object in appealing from the judgment in his favor in the personal action. He would have the right to appeal from the judgment, dissolving the writ of attachment, although nothing done since the date of the judgment, could add to the finality of the judgment dissolving the attachment.

In an early case this court held that an appeal lies from a discharge of a garnishee in an attachment case. The facts may not be quite similar between the case before us and the case to which we refer; the principle is in the main the same. Laverty vs. Anderson, 4 M. 606. In Hyde et al. vs. Jenkins, 6 La. 427, it was held that an interlocutory judgment which releases the property from attachment may be appealed from.

Upon another ground it strikes us the appeal should be sustained.

The property attached was released, and it is held by a third person, by whom it was bonded as being his own. His right as owner can not be questioned on the trial before the District Court in the present condition of the case, even if he be not the owner. The judgment dissolving the attachment is binding on all concerned until it be reversed on appeal, if reversible.

If a plaintiff in attachment has any right at ail he should have the right to hold the property attached (or its equivalent in case it has been bonded) until the decision of the case. Here the property was released and the bond canceled by the effect of the decision dissolving the attachment.

A similar question, in our view, was decided in Laverty vs. Anderson, 4 M. 606. The court held that the order discharging the garnishee was so far final that an appeal lies.

A similar view was announced in Hyde vs. Jenkins, 6 La. 427.

In view of the foregoing we think the appeal should be heard, and the motion to dismiss refused.

It is ordered and adjudged that the motion to dismiss the appeal filed in this case be refused.

On the Merits.

Blanchard, J.

Plaintiffs brought suit against defendant, accompanied by attachment and garnishment proceedings.

Defendant took a rule to dissolve the attachment on several grounds, among them that the attachment bond is illegal, insufficient, •and not such as the law requires, and that the surety thereon is not •such as the law contemplates.

From a judgment dissolving the attachment plaintiffs appeal.

'The attachment bond is signed by Bayne & Onorato, as principals, and by T. L. Bayne as surety.

The “T. L. Bayne ” who signs as surety is one of the partners of •the firm of Bayne & Onorato.

The question presented is: Can an individual member of a copartnership become surety on an attachment bond executed by his firm as principal? Is he such security as the law contemplates on a bond •of that character?

It is shown that the firm name was signed to the bond by Onorato, the junior member, while Bayne, the senior, signed it as surety in his individual capacity.

Because Onorato, and not Bayne, signed the name of the firm to the bond as principal, can make no difference.

If Bayne, individually, were legally competent as surety, he would be so even though he himself had already signed the firm name as principal.

It is claimed that Bayne & Onorato are an ordinary, and not a ■commercial, partnership, and from this it is contended that as each partner is bound only for his share of the obligation of his bond, that is to say, for one-half thereof, nothing prevents one of the partners from becoming surety for his copartner to the extent of the latter’s .liability on the bond.

While, from the testimony found in the record touching the character of the business done by the firm, we are by no means satisfied ■this partnership is to be classed merely as an ordinary one, in our ■appreciation of the question under consideration it makes no difference whether the obligation of the partners on the attachment bond ■be solidary, or each for his share only.

.Bayne & Onorato — the two as one principal, whether viewed as ordinary or commercial partners — are required by law to give as surety on their attachment bond “ one good and solvent person.” While it is true, in a sense, that a partnership is a legal entity, distinct from the individual members, comprising it, there can be no doubt that its several members, as well as the partnership itself, must be viewed as principals on an attachment bond signed in the firm name for the purpose of taking out an attachment at the suit of the firm.

And the extent of the individual liability of its members for the obligations of the partnership does not affect this.

Mr. Bayne, then, is a principal in the attachment obligation. He is bound on the bond in that character. How can he be both principal and surety at one and the same time in the same obligation and for the same liability?

In this connection the view that would make of this partnership a-third person in its relationship to the individual members thereof is a mistaken one.

If we admit that Bayne & Onorato are an ordinary partnership, and that Bayne’s liability on the bond is that of ordinary partner only, would the case be different? Conceding that he is a competent surety for the part of the obligation for which Onorato is bound, then we would have a surety for one-half of the bond only. There is no surety as to Bayne’s part, and the bond would not meet the requirement of the statute, which stipulates that it must be for a sum equal to that which the creditor claims. This means, of course, that the suretyship of the bond must cover the whole amount for which the bond calls-If it be given for only one-half, the bond fails to measure up to the legal standard.

The very definition of suretyship is that it is an accessory promise by which a person binds himself for another already bound. C. C. 3035.

What other has bound himself for Bayne on this attachment bond? What suretyship has he for the obligation of the bond, whether the whole of it or part of it, resting upon him as principal? None whatever.

We hold, therefore, that Bayne, one of the partners in the creditor firm suing out the attachment, is to be viewed as a principal in the attachment bond, and, being such, could not become surety on the same bond. As he was the only security, the bond is not such as the law contemplates and the attachment was rightfully dissolved. Judgment affirmed.

Breaux, J., dissenting.


author: Watkins, J.

text:
    No. 12,663.
    Mrs. Bettie Allen vs. Louisiana National Bank.

      Mandamus will not lie for the purpose of compelling a bank to pay out of the funds of a succession deposited with it, a check drawn by two executors, when there is a third executor protesting against the payment.
    While it may be true, as a general proposition, that either one of the executors may perform any act of administration without the concurrence of the other two, it does not follow that two of the executors can check out of bank succession funds against the protest of third executor.
    APPEAL from the Civil District Court for the Parish of Orleans, Théard, J.

      J. JJ. Pierson for Plaintiff, Appellant.

      Branch K. Miller for Defendant, Appellee.
    Argued and submitted March 11, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding by mandamus to coerce the respondent to pay over the sum of nine thousand aud twenty-four dollars and twenty-two cents out of the funds and moneys of the succession of R. H. Allen, on deposit therewith', upon a certain check or draft mentioned and described in the petition of the relatrix.

In the lower court there was a judgment dismissing the preliminary writ and the plaintiff’s suit, “ without prejudice to her rights in another action before a court of competent jurisdiction,” and from that judgment the relatrix prosecutes this appeal.

The respondent; appeared and filed an exception and answer, which are of the following tenor, viz.:

That as a matter of fact, and as averred in the petition, Ogden Smith, one of the executors of R. H. Allen, deceased, is a necessary party defendant to this suit, and in respect to said executor the respondent pleads the exception of non-joinder, and prays that the suit be dismissed.

In the alternative that the exception be overruled, it pleads the general issue, and further answering, avers that on the 26th of October, 1894, the relators, Mrs. Bettie Allen, executrix, and "W. F. Oollins, co-executor of the last will and testament of R. H. Allen, deceased, conjointly with Ogden Smith, another co-executor thereof, opened an account with respondent bank. That antecedent to and at the time of the opening of the aforesaid account, the two co-executors aforesaid had furnished Mrs. Bettie Allen, executrix, with a power of attorney, by the terms of which she was given full power to draw all checks against said account, but that subsequently, on the 12th of November, 1895, respondent was duly notified by the co-executor’ Ogden Smith, that it must not honor or thereafter pay any check drawn against funds in its possession belonging to the succession oj; R. H. Allen, unless same were signed by him. That on the 14th o November, 1895, the respondent bank was notified in writing by the said Ogden Smith, co-executor, that he had revoked and recalled the aforesaid power of attorney, and that he had given notice of its revocation by publications made in the daily newspapers of New Orleans.

It further avers that on the 9th of July, 1897, it was again notified by Ogden Smith, co-executor, not to pay any checks drawn against the estate of R. H. Allen unless same were signed by him .in his capacity of co-executor, as well as by the executrix and his co-executor, Oollins.

It avers further that on account of said notifications it has refused and did decline and refuse to pay a check for nine thousand and twenty-four dollars and thirty-two cents, which is described in the petition of the relatrix, by reason of the absence of the signature of said Ogden Smith, executor, from said cheek; and that in its opinion, it had no right or power to honor a check as the one presented was signed, even if the aforesaid power of attorney had not been revoked and said notices had not been received; but as said power of attorney had been revoked and said notifications had been received, it was not authorized to honor and could not legally pay a check against the funds of the succession of R. H. Allen in its custody and on deposit in its possession and for its account, not having the signatures of the executrix and the two co-executors.

In other words, that no part of said succession funds could be lawfully checked out of the respondent bank “ except upon the check or order of all three of the said succession representatives.”

It further answers and says that it is ready and willing to pay any check drawn against said succession funds that is signed by all three of the necessary parties.

That it is a mere stakeholder, .without interest in the result of this suit, or in the fund deposited in its vault, and entrusted to its care, except to see to it that proper and legal vouchers are furnished when payment or disbursements are made thereof.

The check in question.is of the following form, to-wit:

“ $9,024.22 New Orleans, La., July 7, 1897.
“ Pay to the order of Bettie Allen, nine thousand and twenty-four dollars and twenty-two cents, and charge to the account of the estate of R. H. Allen.
“ To the Louisiana National Bank, New Orleans, La.
“ (Signed) W. F. Collins, Executor.
“ Mrs. Bettie Allen, Executrix.”

The testimony shows that on the 8th of July, 1897, the day subsequent to the execution of the aforesaid check, and before the presentation to the respondent, same was presented to Ogden Smith, executor, for his signature, and it was refused; and that thereupon said check, as above written, was presented to the bank for payment, and it was refused.

It further appears, that upon presentation of the aforesaid check to the respondent, its vice president advised with its attorney, who said that it would nob, in his opinion, be safe, in honoring the check as it was presented for payment — particularly in view of the notification that Ogden Smith, executor, had given it previously.

The statement made by one witness was that the bank has the money on deposit to pay this check; and the only reason for refusing to pay it was his advice that it would not be a proper and sufficient discharge from liability, and would expose respondent to the liability of having to pay it a second time. The only question is whether or not the check is drawn in such a way as to make it obligatory upon the bank to pay it; and its only wish is to be placed in a safe position.”

The foregoing averments of the answer, and the extracts we have made from the testimony, will serve all the necessary purposes of the scope we propose to give the present opinion. It is our .opinion that under the facts and circumstances detailed, the respondent bank was not bound to pay the check as presented, becanse Ogden Smith, co-executor, had not affixed his name thereto.

The transaction is one totally, disconnected from the succession of R. H. Allen, which is being administered in the probate court of Lafourche; and, consequently, while it may be true, as a general proposition, that either one of these joint executors may perform an act of administration within the jurisdiction of the court administering same, it by no means follows that one, or two of them can draw the succession funds out of bank against the positive protest of the third executor — those funds being within a jurisdiction different from that of the succession.

The bank is a stakeholder, residing in this city and subject to the jurisdiction of this court pro hac vice. The bank makes no question of the competency of the Civil District Court to deal with the question at issue and to determine it. Indeed, we do think it could not raise such an issue, and is clearly without interest to do so.

But the fund being within the territorial jurisdiction of said court, it is competent to pass upon the issue raised; that is to say, whether or not the respondent bank should disburse the funds on deposit for the account of the succession of R. H. Allen on a check signed by only two of the three executors.

Finding that it should not, what is the proper decree to be rendered in the premises?

We are of opinion that the judgment should be reversed, and the cause remanded for the purpose of enabling the relatrix to cite Ogden Smith, executor, into the Civil District Court for the purpose of subjecting him to the judgment of the same upon the issues thus joined.

We note the fact that after the evidence was all in the respondent bank tendered and offered to file an amended and supplemental answer in which new issues were raised necessitating the introduction of additional testimony. That same being objected to by the counsel for rélatrix as coming too late, and the objection having been sustained, the respondent’s counsel reserved a bill of exceptions to the ruling of the court.

There can be no doubt of the corrrectness of the judge’s ruling, for had he ruled differently, the order of proceedings would have been completely reversed, and the introduction of testimony upon the new issues raised would have been begun anew.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and [reversed, and it is now ordered and decreed that the cause be remanded and reinstated, so as to enable the plaintiff to cite Ogden Smith, executor, as a party defendant, and that thereafter same be proceeded with according to law and the views herein expressed.

It is finally ordered and decreed that all costs be deducted from the funds in controversy, except, those appertaining to Ogden Smith, executor, and that with respect thereto same awain-tbe judgment and final disposition of the suit.


author: Breaux, J.

text:
    No. 12,727.
    A. A. Voinché vs. Jean Arcade Brouillette.
    A creditor of a succession, or an heir, or the creditor of an heir, who has obtained a judgment against the heir, his debtor, and who has had his interest as an heir seized, may compel an administrator of the succession to file an account showing what funds he has on hand.
    While the interest of the heir is under seizure, the creditor who, by rule, compels the administrator to account, does not thereby injuriously affect any of the rights of his debtor or of the succession of which the debtor is an heir.
    An action to compel an accounting by an administrator of the succession, who has never filed an account, although property has been sold, cash realized, and a number of years have elapsed since the succession was opened, offers no good ground for complaint.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Cullom, J.

      A. V. Coco for Plaintiff, Appellant.

      Oouvillon & Son for Defendant, Appellee.

      Argued and submitted February 11, 1898.
    Opinion handed down February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was a rule taken by the creditor of an heir on the administrator of a succession to compel him to file an account of his administration.

It appears that the creditor obtained a judgment against the heir. Under this judgment he had seized the interest of the heir in the succession, and after seizure claimed, in virtue of the seizure, a right to compel the administrator to account.

The administrator interposed an exception to the rule of no cause of action. On this exception the rule was dismissed with costs.

The case is before us on the appeal of plaintiff from the judgment of dismissal.

Under the statute a creditor or other person interested may file a rule or motion to ascertain whether an administrator has any funds.

The plaintiff grants that a creditor of the succession or an heir has the right to compel the administrator to render an account upon motion or rule. But he contends that a seizing creditor has no such right prior to the advertisement and sale of the property seized; that his only right is to continue with the seizure to a sale and realize on his claim, as a seizing creditor, from the proceeds of the sale. To any one having an interest is given the right to rule an administrator to an account. This, in our view, manifestly includes the creditor who has caused the seizure to be effected. As a creditor he has the right to compel an accounting to make certain how much or how little he may be sold under his seizure. The judgment and eeizure secured to him, as relates to the succession, a standing in court, and a right of which he can not be divested during the time that the property seized is in gremio legis. The indebted heir is without power to interfere. No good reason suggests itself why, during that time, the creditor should not be permitted to have fixed the amount coming to the heir, his debtor, as the heir might have done had his interest as an heir not been seized.

The plaintiff is not in a position to champion any right the heir may have. We did not, in the course of our discussion, discover that the heir can possibly be made to lose, in case of his payment of his indebtedness, after the seizure of his interest. He retakes his property or right, only made the more definite by the action taken on the rule or motion to compel the administrator to account. '

It will be in time to decline to entertain such a rule to compel an accounting when.it will become apparent, in any case, that the creditor is harassing the legal representative and needlessly causing costs to be incurred. We have discovered nothing of the kind here. We are informed by the record that the administrator qualified in February, 1894; that he had property sold, had funds on hand and has never rendered an account. In view of these facts it became proper for him to account.

In Succession of Tureaud vs. Gex, 21 An. 253, the right of a creditor to be paid his judgment against one of the heirs was enforced. The creditor was an opponent and his right to proceed thus to secure an amount due his debtor was specially recognized. If the creditor of an heir can proceed by way of opposition to recover the amount of his judgment, a fortiori he should have the right to compel an administrator to account to the end that he may ascertain the value of the right1 held by the sheriff, under his seizure for his, the creditor’s, account.

In Smith & McKenna vs. Charles, 27 An. 504, also, the claim of the creditor was recognized “ as one having an interest ” in matter of the settlement of the succession of which his debtor was one of the heirs.

We do not think that we should stop half way; this court having heretofore decided that “ any creditor or. other person interested ” take in the creditor of the heir (C. C. 1151) ; this, in our view, includes the ereditor’s right to compel the administrator to render an account. Lastly: The proceedings by rule to compel the administrator to account has the law’s sanction. Succession of Townsend, 37 An. 114.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; that the case be remanded for further proceedings; that it be reinstated on the docket of the court a qua, and the issues tried in accordance with the views above expressed.

It is ordered that the defendant and appellee pay the costs of both courts.


author: Blanchard, J.

text:
    No. 12,758.
    State of Louisiana vs. Gaston Hearsey.
    Our statutes proscribe a penalty for “ assault with intent to commit rape,” but none for “ assault with attempt to commit rape.”
    A verdict, therefore, returned for “ assault with attempt to commit rape,” on an indictment for rape, and a sentence, based thereon, of fifteen years at hard labor under Act 59 of 1896, prescribing' a penalty of not exceeding twenty years for assault with intent to commit rape, can not be sustained.
    A PPEAL from the Fifteenth Judicial District Court for the Parish of East Baton Rouge. Brunot, J.

    IkT. J. Cunningham, Attorney General, H. N. Sherburne, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      T. Jones Cross and L. D. Beale (Jos. E. Generelly of Counsel) for Defendant, Appellant.
    Argued and submitted March 12, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

The accused was indicted for rape. His trial resulted in the following verdict:

“ Guilty of assault with attempt to commit rape.”

From a sentence of fifteen years at hard labor he appeals.

His case is presented in a half dozen bills of exception, averring errors in the course of the trial below.

We do not find it necessary to pass upon all the questions raised. One suffices.

Before sentence was pronounce'd, a motion in arrest of judgment was filed on the ground that the verdict as returned is not responsive to the indictment, and finds the accused guilty of an offence not defined or denounced by the law, and for which no penalty is prescribed by statute,

The court erred in denying this motion.

The indictment charged the prisoner with violently and feloniously assaulting the prosecurix and ravishing and carnally knowing her.

The testimony justifying the same, the jury might have found him guilty of rape, or of assault with intent to commit rape.

There are crimes denounced by statute and for which penalties are prescribed. R. S. 787, 792; Act 59 of 1896.

But there is no'such specific offence as “assault with attempt to commit rape,” and even if such verdict could, under the terms of Sec. 1053 of the Revised Statutes, be returned on a prosecution for rape, where is the law which prescribes the penalty?

The section of the law cited does declare that if a person be charged with a crime and on his prosecution therefor it does not appear that he actually completed the offence, but it does appear that he did attempt to commit the same, the jury must acquit him of the offence charged, but find him guilty of the attempt.

“And thereupon,” continues the statute, “such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the indictment.”

That is to say;. if there were a statute prescribing a penalty for assaulting with attemptto commitrape, then, under the law quoted, this accused person having been tried for rape, the trial judge could have passed upon him the sentence of the law. But where no law exists specifying a penalty for assault with attempt to commit rape, no sentence on such finding can be passed. It were idle, therefore, for this jury to find the accused, tried for rape, guilty of an attempt to commit rape and seek to justify the verdict under the terms of R. S. 1053, when that statute does not prescribe a penalty for the offence, and non6 exists elsewhere in the law.

It may be true, as contended on behalf of the State, that the language of the law referred to authorizes a verdict of attempt to commit the crime charged in the indictment to have been committed.

But the statute is imperfect and incomplete in not stating a penalty for the offence of attempt ” to commitrape, and as no other statute ekes it out in this particular, it follows that the verdict and sentence appealed from are without warrant of law. See State vs. Foster, 36 La. An. 857; State vs. Burden, 38 La. 357.

The sentence in this case is based upon Act 59 of 1896, which amends and re-enacts See. 792 of the Revised Statutes. This law prescribes that: “whosoever shall assault another by wilfully shooting at him, or with intent to commit murder, rape, or robbery, shall, on conviction thereof, be imprisoned at hard labor not more than twenty years.”

The crime here, it will be noted, for which the penalty up to twenty years is prescribed, is assault with intent to commit murder, rape, or robbery. Not assault with attempt to commit those orirúes.

It may be that the jury, in the instant case, intended to find the .prisoner guilty of assault wiih intent to commit rape. But that was not the language used and we can not assume it. Nor is it suggested in argument or brief that such was their intention.

In charging an assault with intent to commit rape, the use of the word “ intention ” instead of “ intent” is not'fatal; but it is otherwise as to the use of “ attempt.” A. & E. Ency. of Law, Vol. 19, pp. 957, 958; State vs. Oliver, 88 La. An. 682.

On an indictment for rape, a verdict finding the accused not .guilty of the crime charged, but “guilty of an attempt to commit rape,” will not support a conviction for “ an assault with intent to commit rape.” A. & E. Ency. of Law, Vol. 19, p. 968, note.

For the reasons assigned, it is ordered, adjudged and decreed that ■the verdict and sentence appealed from be annulled, avoided and reversed, and that the case be remanded to be proceed with according to law.

Breaux, J., in a written opinion dissents.


text:
    No. 12,419.
    Charles Adolph Schmidt et als. vs. John Herberth.
    ÍTlie sale by heirs of their right in a succession is free from the action in rescission .for lesion; if such a sale is in character aleatory, in that the value of the right •sold depends upon the duration or continuance of the usufruct.
    A PPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.

      Henry Chiapella and Joseph Brewer for Plaintiffs, Appellants.

      Dart & Kernan for Defendant, Appellee.
    Argued and submitted March 11, 1898.
    Opinion handed down March 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was a suit by plaintiffs to set aside, on the ground of lesion an act signed by plaintiffs, transferring to the defendant all their rights in the succession of Catherine Augusta Herberth, nee Burger, his late wife, who was the aunt of plaintiffs and who had inherited the right thus sold; by representation of their late mother (the mother from whom plaintiffs inherited was one of the s;sters of the late Catherine Augusta Herberth). The other sister of the late Catherine Augusta Herberth, Mrs. Suhling, inherited an undivided half of the succession. She also sold her interest to the defendant for a price similar in amount — i. e., one thousand dollars. Mrs. Suhling was not a party to the suit.

Mrs. Catherine Augusta Herberth, late wife of the defendant, died intestate in 1892, leaving no children, and no forced heirs. The property was all community, and subject to the usufruct of the survivor in community — i. e., the defendant was usufructuary of all the property.

The act specially described, as property transferred, four pieces of real estate and forty-ñve shares of the capital stock of the Lafayette Fire Insurance Company of New Orleans of the par value of fifty dollars each. The act sets forth that the vendors were disinclined to wait for the close of the usufruct and on that account they offered for sale their interest in the estate; that in selling they took the usufruct into consideration and in consequence agreed to accept the price in full settlement and extinguishment of all their claims, right and inheritance in the premises.

Plaintiffs have abandoned all claims to the shares of stock of the Lafayette Insurance Company.

Plaintiffs now insist that the amount received by them is not an equivalent for their interest in the succession of their deceased aunt, which they now value at more than $3500. Their petition recites at some length the nature of the right they claim. Plaintiffs complain and aver that they received the price under the representation that it was a fair equivalent for their right of inheritance.

There was no allegation made of fraud, trickery or artifice of any sort.

To plaintiffs’ demand the defendant interposed the plea of no cause of action. This exception was maintained by the District Court and plaintiffs’ suit was dismissed.

From the judgment of dismissal plaintiffs prosecute this appeal. The record discloses that the usufructuary rights qf the defendant were given consideration to, at the time of the sale. It was referred to in the deed as the cause or motive which prompted the plaintiffs to sell.

The value of all property subject to usufruct is lessened and disturbed during the continuance of the right. The date that the owner will enter into possession and enjoy the ownership is uncertain. It gives to the right a character of hazard. The value depended in this case upon the marriage or death of the usufructuary. Prior to one or the other: marriage or death of the usufructuary, plaintiffs’ title would have been imperfect and not one usually much valued in commerce. The uncertainty of the duration of the usufruct gives rise to the aleatory condition which the plaintiffs in their sale did not separate from the price, but included it as constituting one of the chief motives in selling; thereby making the right sold one aleatory in character beyond question. The plaintiffs themselves have impressed in effect “ aleatory ” upon the sale of .the right.

In Parker vs. Talbot, 37 An. 23, the vendor had reserved the usufruct of the property sold during her lifetime: the court held that the right reserved gave to the sale the character of an aleatory contract. The aleatory contract defined in our Oode being a contract more particularly known under the civil law, we consulted civil law authority other than ours upon the subject.

We translate: The property was burdened with a right of usufruct of uncertain duration. The contract was an aleatory contract. Gabriel vs. Ligouzat, Vol. (Dalloz), 30th January, 1866, p. 172.

The value of the property sold depended upon the date of th.e death of the usufructuary; the contract was aleatory. Fuzier-Hermann, Vol. 2, p. 333.

There can be no question of lesion, says Laurent in his work Droit Civil, Vol. 10, p. 526, in an aleatory contract provided there was no fraud.

Here the charge is not fraud, but a general averment that the sale was “ completed under the representation and belief ” that the price was equal to the value of the right.

This court has frequently accepted assistance from the Court of Cassation and from illustrious French jurists in construing and applying the articles of our Code analogous to those of the Code Napoleon.

The allegation that “imposition” had been resorted to; said the court in Russell vs. Springs, 10 L. 427, does not include within its scope the action in which downright fraud is charged in matter of asserted ■lesion. They (“imposition” and ‘.‘fraud”) were treated as separate and distinct causes of action in the just cited decision. It is ■enough to state that not only “no fraud” was here alleged, but that •the “ representation ” set up by other counsel than those who repre■sented plaintiff on appeal, is so vague that it did not amount to a ■charge even of “imposition” traceable to the defendant; a word “imposition ” to which a “ particular ” meaning is given in the cited ■case.

We are not informed by the record that the sale was not aleatory because of the extreme old age of the purchaser, or for some other reason rendering it evident that the chances of the loss or gain in the sale were inconsiderable and of no importance whatever, as compared with the value of the property. In our judgment, unless the ■action is manifestly within the exceptions last suggested it is without •cause. The general rule is that there is no ground to rescind a contract of sale when it is aleatory in character, such as we take it the ¡sale here was.

When the price or the period of entry into possession and enjoyment of the property are uncertain it is exceedingly difficult to •determine that there was no lesion. Merlin Droits Succession, Vol. 4, p. 427, Sec. 7.

This is the view of all the authorities we have examined upon the subject. The very exceptional cases, such as suggested by Marcadé, Vol. 6, p. 313, did not arise here.

It is. therefore ordered, adjudged and decreed that the judgment .appealed from be and the same is affirmed.