author: McEnery, J. Bermudez, C. J.

text:
    No. 10,540.
    Robert E. Rivers vs. City of New Orleans.
    Tlie individual members of a partnership are distinct from Hie partnership. Where .a partnership, which is a particular one, owes taxes, and the partnership is dissolved, each of the partners owes one-lialf the tax. Property acquired by one of the partners of an ordinary partnership after the dissolution of the partnership can not be seized and sold to pay the taxes owed and assessed to the partnership.
    The property assessed is the only property that can bo seized to satisfy the tax on it, unless the tax debtor does some act to bring- the property within the exception provided in Hoot ion 54, Act 83 of 1SSK, or tlie property Is of such a character that it can not be seized directly.
    A reconventional demand made for taxes, praying for a personal judgment agains the tax debtor for the amount of taxes due, is a suit for taxes prohibited by Article 210 of the Constitution.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Gibson & Hall for Plaintiff and Appellant:
    A ■firm engaged in carrying on a hotel is not*a commercial partnership, or a partnership by which each partner is bound in solido for the firm liabilities. 3 31'. 084, Sloeomb vs. Sibley; O. C. 2823.
    City taxes assessed against a partnership for keeping a hotel, and not assumed by either partner at or after its dissolution, do not render all the property of either partner responsible therefor after the dissolution of the firm, or allow its seizure and sale by the City Treasurer of New Orleans or Tax Collector to pay them.
    A notice served on a property holder by the City Treasurer of New Orleans that city taxes assessed against him on movable property in a certain square are unpaid and delinquent, with interest, and that after three days he will seize and take into his possession or place a keeper thereon preparatory to advertising it for sale for payment of said taxes and interest and cost, under Act 85 of 1888, followed by notice three weeks later claiming seizure of a portion of said property in only one, and that he will proceed to advertise that for sale on the fourth day following to pay said taxes, is not a notice or demand in accordance with law authorizing such seizure, advertisement and sale to pay such taxes, and an injunction will lie to restrain such proceedings for sale where no rule to produce properly therefor has been made. Act 83 of 1S8S, See. 34; 41 An. 487 and 441, V. <& A. Meyer A Co. vs. Parker, Tax Collector; ¡L Oteri vs. Parker (recently decided).
    A seizure of specific property on which the tax is due must be made to affect a sale for payment of such taxes. The lien created by law on property assessed is completed by the assessment and filing of the Assessor's rolls by the Recorder of Mortgages in his oflice. It does not extend to property that did not exist until subsequent years, or to all property subsequently acquired, and Act S3 of 1888, especially Section 34, is unconstitutional, violating Article 40 of the Constitution of this State, in so far as it attempts to authorize seizure of other property than that on which the taxes wore assessed and are due. 41 An. 442.
    The lien and privilege and right of pledge for taxes of 1880, 1S82, 1883,1884 and 1885 are prescribed. Act 77 of 1880, and Act 90 of 1877; 40 An. 181, Sue. of Stewart.
    A claim against one for taxes on jewelry, machinery or property not on the assessment roll, but on the tax bill, and not owned by the person named in the tax bill at the time, can not be recovered.
    The provision of law in Section 54 of Act 85 of 188S, and previous years, is relative to concealing, parting with and disposing of property, and not to its being worn out in use. 41 An. 442, Meyer vs. Parker, Tax Collector.
    Taxes due under an assessment on stock in trade, bar, horses and vehicles and furniture of the Hotel Royal can not bo enforced by seizure and sale of the furniture of the St. Clnu-les Hotel when all of the property assessed at the Hotel Royal is there at the time, as it has been continuously since the assessment.
    The property on which the taxes are due is alone liable to seizure under all of the acts of the legislature under the Constitution of this State. Art. 210.
    Where plaintiff alleges that the assessments are illegal on the ground that he owned but a portion of the property — assessed after proof of that fact — he can show by evidence that the small portion of the property assessed is not worth as much as the entire amount assessed, the proceeding being one to cancel assessments that can bo filed after November 1 of the year in which the assessment is made that carries with it proportionate reduction as a consequence.

      Tlic roconvontional demand made for taxes due, and piaying for judgment for same with lien, is a suit for taxes prohibited by the Constitution of the State. Art. 210; 41 An. 439, 449, Meyer vs. Parker, Tax Collector, and authorities cited.

      W. B. Sommervilley Assistant Oity Attorney, and Carleton Hunt, Oity Attorney, for Defendant and Appellee:
    1. Alleged over-assessments and irregularities in the manner and mode of making assessments must bo sought to bo corrected in the manner and mode, and within the time specified by law. Shattuck & Hoffman vs. New Orleans, 39 An. 206; 1 So. R. 413; (Jay vs. Board of Assessors, 34 An. 370; New Orleans vs. St. Lou is & (\ R. R. Co., 37 An. 45; Otcri vs. Parker, 41 An. —; New Orleans vs. Canal and Banking Co., 32 An. 160; State vs. Meyer, 41 An. 437; Gaither vs. Green, 40 An. 364; Red River and Coast Line vs. Parker, 41 An. —.
    2. Property assessed is liable to be-taken possession of by the Treasurer of the city, and sold to enforce the payment of taxes due thereon. Cons., Art. 211; Sec. 46, Act 85 of 1888; Alexandria vs. Ileyuuin, 33 An. 801; Alexandria vs. Williams, 35 An. 329; State vs. Meyer, 41 An. 437; Holden vs. Baton, 7 Pick. 15; Act 119 of 18S2.
    8. Taxes due the City of New Orleans are imprescriptible. See. 20, Act 7 of 1870, p. 39; Davidson vs. Lindop, 36 An. 765; Sue. Stewart, 41 An. 127.
    4. And the liens and privileges securing the taxes on movables are also imprescriptible, and need not be recorded. Cons., Art. 177; Mu lian vs. Creditors, 39 An. 397; 2 So. R. 46.
    5. Stock in trade, money, furniture in hotels, and other similar movable proper ly which is necessarily undergoing change all the time, in the nature of the business in which it is employed, continues tobe the same property assessed for all intents and purposes of taxation. Mullan vs. Creditors, 39 An. B97; 2So.lt. 46.
    />. The clause in Article 211 of the Constitution, providing that taxes 021movables shall be collected in the year in which the assessments are made, is directory* and not mandatory. Oity vs. Wood & Bro., 34 An. 733; Secs. 43 and 46, Act 85 of 1888; Mullan vs. Creditors, 39 An. 397; 2 So. R. 46.
    7. Where it is evident that the plaintiff in injunction owes some of the taxes involved, the injunction sued out by him will be dissolved. He must first pay that which he owes before he can be heard in a court of justice to complain of an alleged injustice about to be done to him by the government in enforcing 7>ay22ient of that which is 2‘oally due. State K. R. Tax Cases, 9217. S. 575, 618-615; National Bank vs. Kimball, 103 V. S. 733, 734; Desty on Taxation, p. 650, e.l seq.; First National Bank of Hannibal vs. Meredith, 44 Mo. 503; High on Injunctions, Yol. 1, pp. 312-3IS; Cooley on Taxafci‘021, pp. 536-541.
    S. When the Constitution says that the Tax Collector sliallsoize and sell property v'itlwui suit for taxes due thereon, it is not attempting to define or limit the jurisdiction of the courts of justice of this State.
    <). “ The objects in view were the prohibition of the forfeiture of the property for non-payment of taxes, and the substitution thereof of summary expropriation without suit, to enforce such payment.” City vs. Wood & Bro., 34 An. 734.

      10. When tlie tax delinquent, enjoins the Treasurer from seizing and selling tlie property upon which taxes are due; or when there is any other cause which renders it impossible for the Collector to comply with the law, then are the courts open to the government for the enforcement of the collection of taxes. Particularly is this the case when the tax delinquent summons the city into court. Constitution State of Louisiana, Art. 11; New Orleans vs. Day, 29 An. 418; Oakland vs. Wliipplo, 89 Cal. 113; Sue. of Dupuj-, .33 An. 260; Reed vs. Creditors, 39 An. 120; Askew vs. S. S. Co., 13 An. 497; State vs. Moyer, 41 An. 438; Sue. of Stewart, 41 An. 131; Brent vs. City, 41 An. —.
    11. It is too late to argue in the appellate court that the city had no right to reconvene and ask for a money judgment for taxes. Objection should have been . made at the time that evidence was offered in support of the reconventional demand. Jonau vs. Serranil, 3 Rob. 365; Kean vs. Brandon, 17 An. 37; Ames vs. People’s Tel. Co., 3 An. 184; Oayarré vs. Tunnard, 9 An. 235.
    12. When a plea of prescription is the only answer filed to a money demand, it admits the correctness of the claim. McCarty vs. Bureau, 7 Rob. 459.
   The opinion of the court was delivered by

McEnery, J.

The Treasurer of the City of New Orleans served ■on R. E. Rivers, for taxes alleged to be due the Oity of New Orleans, .the following notice:

“ New Orleans, La., January 24, 1889.

“To Mr. Robert E. Rivers: You are hereby notified that city taxes ■assessed to you on the following movable property, viz; Square No. '224, Assessment District 5, St. Charles, Common, Gravier and ■Oarondelet streets:

Copy of rolls for the year 1879. Amounting to Assessed value. Description of property.

1880 $110 91 $34,550 Horses $300, furniture $34,250

Bal. 1882 491 03 35.300 Horses $300, furniture $35,000

1883 603 00 30,150 Furniture

1884 16 00 800 Machinery

1885 922 0-2 36.300 Horses $1300,furniture $32,500, Mdse. $1000, jewelry $1500

1886 652,46 32.300 Horses $1300, furniture $30,000, Merchandise $1000

1887 1.258 46 62.300 Horses $1300,furniture $60,000, Merchandise $1000

1888 1.258 46 62.300 Horses $1300,furniture $60,000, Merchandise $1000

'Total, $5,312 34 $294,000

are unpaid and delinquent, and that they bear interest from the date-of delinquency at the rate of 10 per cent, per annum until paid. That after the expiration of three days from the service of this notice-if said taxes, interest and costs are not paid to the City Treasurer, I will-seize and take into my possession or place a keeper on said1 property preparatory to advertising for sale, in accordance with law, the same or so much thereof as may be necessary for the payment of taxes, interest and costs due as set forth above, all in conformity with Act 85 of 1888.

(Signed) J. N. Hardy, City Treasurer.”

Subsequently the following notice was served on Rivers:

“New Orleans, La., February 15, 1889.

“ R. E. Rivers, St. Charles Hotel:

Dear Sir — When my chief deputy in the back tax department,. Mr. Desposito, called on you in regard to the seizure of the furniture of the St. Charles Hotel in my name for the city taxes, you and he had some conversation about further proceedings in the case.

“ I now beg to inform you it becomes my official duty to advertise the property seized and to sell the same for city taxes due thereon., I will, therefore, proceed to advertise said property for sale Tuesday morning next, February 19, in accordance with law.

Respectfully,

(Signed) “ J. N. Hardy, City Treaurer.”

The plaintiff in injunction, for various reasons alleged by him, enjoined the advertisement and sale of the property, situated in the St. Charles Hotel, seized in pursuance of said notice.

It is admitted by the counsel for the city that all of- the furniture in the St. Charles Hotel was seized to enforce the collection of the above taxes. No other property was seized in pursuance of said notice.

There was judgment for the city for taxes assessed in 1880 and1 1882 against Rivers & Bartels, with interest at 10 per cent, from March 31, 1880, and for taxes of 1883, with the same interest from August 22, 1883, and for the taxes of 1885, with like interest from October 7, 1885, and for taxes of 1886, with like interest from October 1, 1886, and for taxes of 1887 and 1888, with like interest from-August 5 of each year.

The liens and privileges claimed by the city were recognized to exist on all the property under seizure for the taxes assessed on the property contained in the notices served on the tax debtor.

There was judgment for the plaintiff perpetuating the injunction for the tax on machinery for 1883 and 1884, and the taxes on stock in trade and jewelry for 1885 and for tax on stock in trade in 1886, and 1888.

The taxes for 1880 and 1882 are assessed against Rivers & Bartels, a particular partnership then engaged in the hotel business at the St. Charles Hotel building. The partnership was dissolved in 1883.

The liens and privileges for these years are prescribed. Sue. of Stewart, 41 An. 131.

The amount due for taxes by this firm is an ordinary debt.

The partnership was a distinct personality from the individuals composing it. Rivers owed on the dissolution of the partnership . one-half of the tax debt.

The assessed property is presumed to continue in the possession of j;he person to whom it is assessed. Tt was assessed to Rivers & Bartels, and the presumption is that it is in the possession of the firm, or its liquidator or the person who has assumed its liabilities. There is no evidence to show that Rivers is the liquidator of said partnership, or that he assumed its liabilities, or has in his possession the property assessed to Rivers & Bartels.

Property owned individually by Rivers, and acquired since the dissolution of the partnership, can not be seized to pay said taxes. No personal judgment can be rendered against him. The identical property assessed must be seized, unless there is some act of the tax debtor committed, or the situation of the property is such that it' can not be reached. Section 54 of Act No. 85 of 1888.

The property assessed to Rivers & Bartels is no longer in existence, as the furniture and carpets have been worn out by use and no longer possess any value.

The assessments of jewelry; merchandise or stock in trade and machinery was of property that never had an existence so far as the plaintiff is concerned, and the injunction as to these was perpetuated.

‘ ‘ Horses ’ are assessed against Rivers from 1885 to 1888 at a valuation of $1300. It is in proof he owned no horses at the period of assessments. He owned one horse and one market wagon for use of marketing for the hotel. This is different property from “ horses ” valued at $1800. Rivers made a written application to.the Board of Assessors for reduction of assessments and for cancellation of property assessed which he did not own. He visited the office of the board some eight times, and was informed on the last visit, by the president of the board, the proper corrections had been made. While not expressing the opinion that this was a compliance with the law in the mode pointed out for the correction of assessment, yet we consider it as a protest against being assessed for property of which he was not the owner. This was not a misdescription of the property, or a wrongful valuation, but an assessment of property that had no existence. The authorities referred to by the counsel of the city have no application to the facts in this case.

There was no seizure of horses and vehicles belonging to and assessed against the plaintiff. The seizure of other property not assessed was made to collect the tax due by Rivers, without a compliance with the provisions of Section 54 of Act 85 of 1888.

It is fatal to the city’s attempt to seize and sell the property situated in the St. Charles Hotel to collect the taxes alleged to be due that said property is seized for taxes due by other property, situated in a different locality, and distinctly and separately assessed. There was no seizure of the property assessed to the plaintiff except for taxes due on the specific property situated in the St. Charles Hotel.

Art. 210 of the Constitution provides that there shall be no forfeiture for taxes, either on movable or immovable property, for nonpayment of taxes, but that they shall be collected without suit, after giving due notice to the delinquent.

The property assessed is the only property that can be seized, unless the debtor does something to bring the property within the exception provided for in Section 54 of Act 85 of 1888, or the property is of such a character that it can not be seized directly. V. & A. Meyer & Co. vs. Tax Collector, 41 An. 441.

The taxes on all property situated within the St. Charles Hotel have been paid up to and including 1886.

All the property in this hotel was seized, and a lien and privilege recognized on it by the judgment appealed from to satisfy the tax due on the furniture and property situated in the Hotel Royal. Some furniture had been exchanged between the hotels Royal and St. Charles, but before the assessment and after the payment of taxes on the St. Charles Hotel property. There was no seizure made of any of the Hotel Royal property, although it was separately assessed.

The St. Charles Hotel furniture was seized to pay the taxes on property of every description assessed against the plaintiff Rivers. It was seized to pay the taxes due on the Hotel Royal furniture, and for stock in trade and bar of said hotel for taxes of 1887 and 1888. There has been no effort to conceal property assessed by the plaintiff. It is not of such a character that it can not be seized. The furniture assessed at Hotel Royal is there, and has been in said hotel since the day of its assessment.

When the property assessed is in existence and in the possession of the tax debtor, and is accessible for the purposes of seizure, the Tax Collector can not seize other property of the tax debtor to pay the tax due by the specific property assessed.

In the case of V. & A. Meyer, 41 An. 441, which was affirmed in Oteri vs. Parker, Tax Collector, not yet reported, this court said: “The revenue acts of 1888 and of prior years, since the date of the Constitution, fully recognize the constitutional mandate, and make it the duty of the collectors to enforce the payment of taxes on movable as well as on immovable property by seizing and selling the ‘property on which the taxes are due.’ They provide for its direct seizure when it lies open to such; and in case it is in the debtor’s possession and out of reach, they provide for a demand on the tax debtor to produce and deliver it, and in case he refuses, they authorize-a summary proceeding in the courts to compel him to do so. It is only when this property ‘ has been concealed, parted with or dis-' ■posed of by the tax debtor,’ that the seizure of- other property is in any manner authorized. Act 85 of 1888, Sec. 54.”

The City of New Orleans, in her efforts to collect the tax, has not brought herself within the exception provided by Act 85 of 1888. The seizure of the property was not made in conformity to law, and is therefore illegal.

After filing a general denial, the city reconvened and prayed for a personal judgment against the plaintiff for the amount of taxes claimed. The-eity prays that the judgment in her favor be amended and the amount obtained on the reconventional demand be increased.

As no suit can be instituted against the tax debtor and a personal judgment rendered against him, the reconventional demand should have been rejected. Art. 210, Constitution.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, reversed and amended, and it is now ordered and decreed that there be judgment in favor of the plaintiff perpetuating the injunction herein, except as to the furniture in the St. Charles Hotel for the taxes, without interest and penalties, assessed against the same for the years 1887 and 1888, reserving to defendant the right to recover any taxes, if any are due, on other property legally assessed against plaintiff, the appellee to pay costs of both courts.

On Application fob Rehearing.

The opinion of the court was delivered by

Bermudez, C. J.

On a carefal review of the opinion rendered in this case we find but one error in our decree, which may be corrected without granting a rehearing.

The law allows interest on taxes from the time they are due, and this should have been included in our decree.

It is therefore ordered that the words “ without interest and penalties ” be stricken from the decree, and that in lieu thereof be inserted ‘‘ with interest from the time the taxes became due,” and that in other respects our former decree remain undisturbed.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 10,723.
    The State of Louisiana vs. West Hamilton.
    1. Whore the confessions oí a defendant are made voluntarily, without anything having been done to induce or extort them, they are admissible in evidence at his trial.
    2. Where an interpreter has been appointed and duly sworn to interpret the testimony of awitness, who didnot understand the English language, and it is made evident that he was competent, and faithfully and correctly interpreted the language of the witness, there was no ground for objection.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.
    Defendant unrepresented by counsel in this, court.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted on the 6th day of October, 1890, for robbery; tried on the 15th, convicted and sentenced to five years’ imprisonment in the penitentiary, and from that judgment prosecutes this appeal.

He, in the first place, excepts to the evidence of a witness on account of his inability to speak the English language, and alleges that the taking of his testimony through the medium of an interpreter deprives him of his right to confront the witness, and makes the evidence hearsay and ex parte.

It is not pretended that the interpreter was incompetent or unfaithful in interpreting the testimony, or that the interpretation was not correct.

The accused has no cause of complaint on this ground. The objection was properly overruled.

The second bill of exceptions is taken to the admissibility of a confession made by the defendant, as not voluntary.

It was affirmatively shown that the confession was made voluntarily, and was not obtained by undue influence nor by violence.

About half an hour after the accused had been arrested he made a statement of his guilt to one of the persons by whom he had been arrested.

This witness testifies that no threat or menace was made to induce the accused to make the confession. The trial judge, who is vested with considerable discretion, was satisfied that there had not been any undue influence.

His ruling was correct, and the testimony was admissible.

Lastly, accused urges error in a motion in arrest of judgment, in that the information does not charge that the act was committed “feloniously” and “forcibly,” and that the articles alleged to have' been stolen are not described with sufficient certainty to place the defendant on his guard.

This motion is not borne onb by the facts.

All the essential allegations are contained in the indictment.

The verdict and sentence are legal.

Judgment affirmed.


author: Fenner, J.

text:
    SHREVEPORT.
    No. 289.

    Wm. Bomar vs. Louisiana North and South Railroad Company et al.

      This opinion was omitted by mistake in the publication of the Shreveport cases.

   On Application por Rehearing.

The opinion of the court was delivered by

Fenner, J.

We discuss this application only for the purpose of correcting a very grave misconstruction of our opinion into which counsel has fallen. We have not held, and we are far from holding, that the plea of contributory negligence by a defendant sued for negligence, operates an admission of the negligence charged; nor does the language of our opinion admit of any such construction. We said: “In alleging contributory negligence, defendant admits that there is an issue of negligence between it and the plaintiff; not between plaintiff and a third party.” The admission that there is an issue of negligence is very different from, and indeed contradictory of, an admission of the negligence itself, which latter admission would eliminate and destroy the issue of negligence.

Rehearing refused.


author: Bermudez, O. J.

text:
    No. 10,705.
    First National Bank of Starkville, Miss., vs. V. & A. Meyer & Co.
    There can be no doubt of the correctness of the general proposition that a consignee who accepts a consignment, with the knowledge that the consignor has drawn on him, for a stated, amount, against the goods consigned, impliedly promises to accept and pay the draft; and, that on refusal, he may be sued for a broach of contract.
    It is a recognized principle of the commercial law, of universal application, that a bill of lading, legally transferred, gives a title to the property which it represents. '

      Act 150 of 1868 is a legislative recognition and sanction of the principle.
    A bona fide creditor of a consignor, who holds the latter’s draft, for value, to which bills of lading, transferred in blank, are attached, to secure its payment, is-to be deemed the owner'ot the goods, so far as to give validity to the pledge, created by the forwarder, and, on presentation of the draft, with the annexed bills, to the consignee, before he has accepted the consignment, is unquestionably entitled bo the delivery of the property, and to the payment of his draft by the consignee.
    In order to make absolute the rights of such creditor, it is not essential that the consignor should have directly advised the consignee of the consignment and.of the drawing of the draft and transfer of the 'bills of lading. Such rights are fully secured when the holder of the draft presents it, with the bills of lading annexed, to the consignee before delivery of the goods to the latter.
    Possession acquired of the consigned goods, by the consignee, and disposal by him of the same, to the prejudice of such draft, are illegal and unauthorized.
    Surely, consignees have a right to pay themselves, by preference, of what may be due them by a consignor, out of the goods consigned by him to them; but only where the same have been shipped to them for that pun-pose, and the bills of lading have been mailed, or transmitted through the carrier, to them, under the terms of Act 11 of 1882.
    Consignees not so situated and to whom a draft, with bills of lading indorsed in blank attached, is presented before acceptance by them of the consignment, are bound, on such acceptance, either to deliver the goods to the creditor and bill holder, or to pay the draft presented.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Rice & Armstrong for Plaintiff and Appellee:
    1. The court will take notice ex propria molu of want of jurisdiction. Rogers vs. Goldthwaite, 32 An. 18; State ox rel. Newman vs. Hayles, 32 An. 1135; Schmidt vs. Brown, 32 An. 116; Bright vs. Thompson, 38 An. 801; Pinckney vs. Wolf, 11 An. 306; City of New Orleans vs. Soalzo, 11 An. 1111.
    2. The real amount indispute as shown by the record, and notthoallegations, is the test. Stubbs vs. McGuire, 33 An. 1089, 1000; Denegre vs. Moran, 35 An. 317; Girardey vs. City, 26 An. 292; Wilkins vs. Gantt, 32 An. 929, 930.
    3. The bona fide owner of a draft, with bill of lading indorsed to him, or in blank, attached, is pledgee of the property described in such bill of lading, and owner thereof, so far as to give validity to the pledge. Sec. 6, Act No. 150 pf 1868, Session Acts, p. 191; Delgado vs. Wilbur, 23 An. 81; Gumbol vs. Beer, 36 An. 191; Scrutton on bills of lading, Sec. 71, p. 138.
    1. A consignee, or factor, not having made advances on a particular product consigned to him, has no pledgeupon such product, except the same be consigned “ for the purpose of paying" some balance or account due him, and then only from the time the bill of lading or receipt of the carrier therefor is deposited in the mail, or given to the carrier for transmission. Sees. 1 and 2 of Act No-ll of 1882, Session Acts, p. 56.

      5. The consignee of goods under a bill of lading, duly indorsed, and attached to the consignor’s bill of exchange upon him, takes the goods into his possession subject to the rights of the bona fide holder of the bill of exchange to demand payment. The consignee must honor the bill of exchange or surrender the goods. Helm vs. Meyer, Weis & Co., 30 An. 945; Tiedman on Commercial' Paper, Sec. 494; Shephard vs. Harrison, 1 Aspinall, 66.

      Farrar ¿ Jonas & Kruttsohniti for Defendants and Appellees:
    This is a controversy as to the first privilege upon proceeds of cotton, between the holder of a draft drawn in Mississippi with bill of lading attached, claiming a right of pledge resulting therefrom, and commission merchants in Louisiana, who received possession of said cotton and sold it, and claim first privilege upon the proceeds under the Louisiana law. The Louisiana law must prevail. Art. 3247, Civil Code; Helm vs. Meyer, Weis & Co., 30 An. 943.
    Plaintiff has no right of pledge, having never had possession or delivery. Arts 3152, 3220, 3221, C. C.
    The suit and intervention, being for an amount exceeding $3000, the court has jurisdiction.
   The opinion of the court was delivered by

Bermudez, O. J.

The plaintiff sued to be recognized as the pledgee and qualified owner of certain cotton, or entitled to recover from the defendants the amount of a draft on them, to secure the payment of which, bills of lading for said cotton, indorsed in blank, were delivered by the consignor at the time of shipment.

The cotton having been sequestered, certain parties intervened the day after the seizure and bonded it.

The defendants denied title in plaintiff to the cotton, or right against them to recover the amount of the draft, averring that the cotton had been consigned to them by the consignor, whose creditors they were at the time; that they had possession of the cotton on which they had a privilege; that they sold it, paid themselves, and that there remained a balance to the credit of the consignor, applicable to the draft.

There was a qualified judgment for plaintiff, and one in favor of the intervenors, condemning the defendants to pay the amount of the draft and recognizing the rights of the plaintiff as pledgee to the proceeds of the cotton. From this judgment the defendants have appealed suspensively. The judgment for intervenors is not up for review.

The established facts are the following:

C. M. Waterman & Co., having purchased 68 bales of cotton, borrowed to pay it from the plaintiff’s bank $3280.28, for which they drew at Arksville, Miss., on January 13, 1890, their draft on the defendants, attaching thereto, indorsed in blank, the bills of lading which they had obtained at Ackerman, Miss., from the railroad company for the cotton which was consigned to the defendants at New Orleans.

The draft was negotiated and delivered to the plaintiff, who, without delay, transmitted it to its correspondent here, who presented it, with the bills of lading annexed, to the defendants for acceptance and payment on the 15th and 16th, which was declined on the ground that they had received no advice or invoice from Waterman & Co. touching the same.

On the 16th the cotton, consigned to the defendants, was received by them and stored, and on the 17th it was sold by them to Strauss & Co., who paid for the same on the following day.

On the 20th the plaintiff obtained'a sequestration against the cotton, which was executed on the day after. On the 22d Strauss & Co. intervened, and, as said, bonded the cotton, which went to their possession.

The cotton realized $3275.74 net, out of which the defendants paid themselves $1799.35, the amount of their claim for advances against Waterman & Co., leaving a balance of $1476.30 in their hands, out of which they acknowledged that plaintiff’s claim could be paid.

The plaintiff’s contention is that, by the transfer to them for value of the bills of lading, which were designed to secure payment of the draft, they have acquired a right to be deemed and taken to be the owners of the cotton, so far as to give validity to the pledge, created in their favor by Waterman & Co., and that they are entitled to the possession of the cotton, or to the amount of their draft.

On the other hand, the defendants urge that, as they were creditors for a balance of Waterman & Co. when the cotton was shipped to, and was received by them without contrary advice, they had a privilege on it which entitled them to a preference over all and even any seizing creditor.

The question presented for solution is, therefore:

Whether a bona fide holder and owner for value of a draft of a consignor,’ to whom the bilí of lading of product has been transferred to secure payment, is entitled to possession of the goods, or,, in default, to payment of his draft in preference to consignees, creditors of the consignor, but to whom the product has not been consigned, for the purpose of paying themselves any sum due them by him, or the bills of lading have not been mailed or transmitted for delivery to them.

Section 6 of the Act of 1868, No. 150, page 194, in substance provides: that bills of lading, given by any forwarder, may be transferred by indorsement, and the transferee shall be deemed and taken to be the owner of the goods, so far as to give validity to any pledge, lien or transfer created by the forwarder, the property or goods to be delivered only on surrender and cancellation of the bill of lading.

In Delgado vs. Wilbur, 25 An. 84, the then court (1873) well said, commenting on that identical section, that it is only a legislative sanction given to the commercial law of universal application, that a bill of lading, legally transferred, gives title to the property it, represents; quoting authorities in support.

There can therefore be no doubt that when the bills of lading were indorsed in blank by Waterman & Co., and delivered to the plaintiff in Mississippi to secure the payment of the draft drawn by them on the defendants, the plaintiff acquired a right of pledge which necessarily followed them into Louisiana, continuing to attach thereto, notwithstanding any possession which the defendants subsequently acquired of them.

The contention of the consignees, that, under paragraph 2 of Article 3247, R. C. C., they are entitled to a privilege for the balance for advances due them, is not well founded.

That article does not rule so as to settle the controversy. It has. undergone, since its insertion into the Code, modifications which prevent its application favorably to the defendants.

In 1874, by Act. 66, page 114, the matter first received legislative consideration, but in 1882 it was put into a new shape, which controls the present litigation.

By Act No. 44 of that year (1882) Section 3, page 56, the Act of 1874 was amended so as to allow to all merchants, factors and others having any sum of money due them by any consignor sending any agricultural product for sale at New Orleans, or any other town or city in the State, for the pwrpose of paying the same, a pledge on such property, from the time of the mailing of the bill of lading, or .giving of it to the carrier for transmission, with the right of selling the product and appropriating the proceeds to the debt; but without defeating or lessening any other valid encumbrance.

The words, “for the purpose of paying,” and those relative to prior encumbrances, were then ex industria inserted, as they are not found in the Act of 1874.

This provision of law is clearly destructive of the defendants’ pretensions for several reasons, which are matters of fact.

Although it be true that the defendants were creditors of Waterman & Co., as claimed, still the fact remains that the cotton was not shipped to them for the purpose of paying themselves; that no bill of lading therefor was mailed or given to the carrier for transmission to them; that there existed a previous valid qualified alienation thereof, which could not be defeated or lessened by any subsequent transaction.

The ruling invoked, made in the case of Helm vs. Meyer, Weis & Co., 80 An. 948, can afford the defendants no relief.

The essential facts on which the controversy turned are dissimilar from those in the instant case, and the law which governed in its -decision is different from that which controls in the present litigation.

In that case, the shipments were made “for account of the consignor,” without any qualification; the letters of advice contained no mention of any draft as having been drawn against them; the bills of lading had been transmitted to the consignees; the draft had been drawn after the letters had issued and been received; the bills of lading were not annexed to the draft, which was presented after the consignees had accepted the consignment, received the cotton and disposed of it.

In the present instance the draft was drawn, the bill of lading transferred in blank, being attached thereto, was presented to the consignees before they had accepted the consignment, taken possession and disposed of the cotton.

In the first case, the defendants relied on the first paragraph of Article 8247, R. O. 0., which was properly applied to the facts as presented, the court holding that the consignee could not be divested in the manner attempted by the draft holder.

In the case under consideration, the defendants rely on the second paragraph of the same article, which refers to a different state of things, and which has undergone material changes, for the last time in 1882, before the facts of this case had arisen.

Even had the second part of the article not undergone modifications, it would not justify the pretensions of the defendants, who never had a legal possession for themselves of the cotton, and never had the bills of lading in their favor, so as to give them any pledge or lien on the cotton.

The ruling in 30 An. 943 rather militates decisively against the defendants here, for it formally and correctly announces that there can be no doubt of the correctness of the general proposition that a consignee who accepts a consignment with the advice and notice that the consignor has drawn on him, for a stated amount, against the goods consigned, impliedly promises to accept and pay the draft, and on refusal may be sued for a breach of contract.

It also announces by the clearest intimation that a consignee’s claim to a right on the product can not be defeated by any thing short of the negotiation of the bills of lading, or of a designation in the bill that the shipment is for the account of the draft drawn.

The rights of a consignee who is a creditor have been acknowledged and enforced on the goods consigned to him when in his legal possession, actually or constructively, in the Helm case, 30 An. 943, and also in Florsheim vs. Howell, 33 An. 1184, and in Phelps vs. Howell, 35 An. 87, in both of which the provisions of the Act of 1874, No. 66, received application, the holder of the bills of lading being deemed the possessor.

If therefore it be true, and it surely is, that a consignee’s right can not be destroyed by the consignor’s ill practices, as was attempted to be done in those cases, it is no less so that equally sacred are those of a creditor of the consignor, to whom the bills of lading have been transferred, to secure the payment of a draft of which he is the holder and owner.

Such rights can not be impaired by the omission of the consignor to advise the consignee of the drawing of the draft and transfer of the bills of lading when the draft and bills attached are presented to the consignee before he has knowledge, or has accepted, or has taken possession of the consignment.

While ruling as we do, emphasizing the presentment he/ore acceptance, we are not to be understood as intimating that, even had the draft and bill holder presented same after the consignment had been accepted, his claim would be defeated.

The reason assigned by the defendants for not paying the draft, that they had received no instruction touching it, is inadmissible.

It was immaterial to the holder of the draft and bills whether such was or not the fact.

His possession of the indorsed bills was his unassailable title, and his exhibition of them to the consignees previous to their taking possession of the consignment were better than any instruction or advice which might have been given them, as they established conclusively that the .consignor had parted with his title to it by transferring the same to another, and thus made known, in an absolute way, facts, knowledge of which could have been transmitted by correspondence. That presentment proves that the consignees were notified of the existence of the draft and of the transfer of the bills of lading before they had accepted the consignment and received the cotton.

The complaint that the plaintiff never had possession of the cotton, while the defendants had, can hardly be gravely contended for.

By the transfer of the bills of lading the plaintiff acquired a right of pledge, and therefore in legal contemplation had a valid constructive possession of it superior to that of any actual possessor, which continued to the very end, when the cotton, by being illegally sold by the consignees, passed to the hands of innocent third parties.

The claim, on the other hand, of the defendants, that they had possession, lacks foundation.

The possession which the defendents acquired after the draft with the annexed bills of lading had been presented and thus notified to .them was, if not tortious, to say the least, was wholly unauthorized and unjustifiable, as taken in direct violation of the law, which forbids the delivery of product by a carrier in cases in which the bills of lading have been transferred, unless on surrender or cancellation of the same (Section 6, Act 150 of 1868) by the consignee or holder of the bills.

It is therefore apparent that the plaintiff was entitled, as holder of the draft and of the bills of lading indorsed in blank attached thereto, to be deemed and taken as owner of the same, so far as to give validity to any pledge which the forwarder had created thereon; that the defendants were in time amply notified of the conditional shipment of the cotton to them; that when they accepted the consignment, received the cotton and disposed of it, they made themselves responsible therefor; and that, on their failing to surrender it or pay the draft when called upon to do so, they became liable for the value of the cotton; and as it exceeded the amount of the draft, they must be held to pay the same, the right of the plaintiff attaching to the proceeds.

It is clear that, as the cotton can not be made forthcoming by the defendants, and they can not produce the identical proceeds, they must be held generally liable for the amount of the draft.

The objection to the jurisdiction of this court, made by the appellee, is ill-founded. It suffices to say that the amount in dispute was that of the draft sued on, and that it was not reduced by the acknowledgment at first made by the defendants, that the plaintiff could be entitled only to the net balance of the proceeds of the cotton, after payment of what was due them, and which was below our lower limit; the acknowledgment not having been acted upon by the plaintiff before the defendants had changed their position, and the original condition of things restored.

The appellee has prayed for damages, treating the appeal as frivolous.

It may be, as in point of fact it is, true, that the defences set up are not maintainable, but as the issues were seriously presented and the questions of law involved were never previously clearly adjudicated upon, we do not think ourselves warranted in thus mulcting the appellants.

Judgment affirmed.


author: Eenner, J.

text:
    No. 10,702.
    A. M. Collins vs. Louisiana State Lottery Company.
    1. To constitute a completed contract of sale there must be an agreement for the object and the price.
    2. Although consent to such an agreement need not be express, but may be implied from acts and conduct, such acts must afford conclusive evidence of consent.
    3. The defendant had the right to adopt reasonable and appropriate rules for the management of its complicated business, and to conduct the same in accordance therewith.

      i. When these, rules prescribe a particular process to be followed in the filling of orders for tickets, the order is not filled until that process is completed; and although, as one step in that process, certain tickets may have been selected to be appropriated to the order, such selection is only conditional upon the completion of the process; and when the process can not be completed within the time and in the manner prescribed, it has the right to cancel the selection and leave the order unfilled.
    5. In such ease there was no binding agreement as to the object; the property therein did not pass; the defendant could not have retained the price had the ticket proved a blank, and the plaintiff can not claim the prize which the ticket drew.
    6. In this case the ticket, in common with all others which had hot been sold, had been destroyed before the drawing; and the defendant’s dealings exhibited that uberrima fides, which should he exacted from it in its peculiar business.
    PPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      P. JB). Theard & Sons for Plaintiff and Appellant:
    This is a suit on a contract of sale.
    Three circumstances concur to the perfection of the contract of sale: the thing sold, the price and the consent. O. O., Arts. 2*189,1779, 1811, 1816.

      As between the pm'ties the sale is considered to be perfect and the property is of right acquired to the purchaser with regard to the seller as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered nor the price paid. C. C., Art. 2156.
    Plaintiff lias proved that he sent from Baltimore to defendant an order for twenty fractional tickets*in its drawing for January, 1890; that the order was accompanied by the price; that the price was received by defendant; that the oi’der was filled; and that twenty fractional tickets were selected and set aside for him, among which was one-twentietli of ticket No. 12,122, which drew the prize of $100,000. He has therefore shown the concurrence of the thing sold, the price and the consent necessary to the perfection of the sale, and as owner of the winning ticket sold, ho is entitled to recover the prize drawn by it.
    The failure to deliver plaintiff’s tickets and their destruction by defendant before the drawing do not affect the rights of ownership acquired by plaintiff as soon as the sale was perfected.
    The notice printed on the back of plaintiff’s order, “ Remittances sent too late ccmi only be attended to for the ensuing dratoing,” and communicated to plaintiff before the sending of the order, constitute a condition precedent to the sale, which determines immediately upon receipt of the order, and before execution of the contract.

      Thos. J. Semmes and Jos. P. Hornor for Defendant and Appellee:
    When the agreement for sale is of a filing not specified, the contract is an executory agreement, and the property does not pass.

      ** All the conditions which ho who gives or proposes, annexed to the delivery or the acceptance of the proposition, are also presumed to have been accepted by the act of receiving.” O. 0.1816.
   The opinion of the court was delivered by

Eenner, J.

The ground of plaintiff’s claim is that he is the owner j by purchase, of one-twentieth of ticket No. 12,122 in the drawing of January 13, 1890, which drew the prize of $100,000.

The defendant denies plaintiff’s ownership.

The salient facts are the following: On January 10, 1890, plaintiff sent to defendant, t>y express, from Baltimore, Md., a package containing an order for twenty twentieths of tickets in the drawing of January 14, and $20 as the price thereof. The order was written on a blank furnished by defendant, and contained, amongst others, the following significant statements: “It is of the utmost importance that correspondents send in their orders early. Many complaints arise from the fact that they wait for the last moment, thus causing a large accumulation of orders and rendering it impossible to give them the careful attention we desire;” and also this: “ Remittances sent too late can only be attended to for the ensuing drawing.”

The package was received by defendant at about 1 o’clock P. M. ■of January 13, the day before the drawing. The defentant conducts its large and complicated business according to certain rules and forms of proceeding applicable to all orders. Letters are opened by one clerk, who hands the orders to another clerk, who fills them by selecting the tickets called for; he puts these tickets in the letter containing the order and sends it, with others of like character, to the correspondence department, where a distributing clerk arranges the orders alphabetically and sends them to an entry clerk, who enter's the date, name, address, number and size of tickets on sheets which are afterward bound in a book. The letter and tickets are then passed to a clerk called the “ writer,” who puts the tickets in a letter and forwards them to the purchaser. The rules further require that all letters containing as much as $20 in tickets shall be sent by registered mail, and that no registered letter shall be sent after the day before the drawing.

In compliance with these rules, the filling of plaintiff’s order was begun, but never completed. The letter containing the order was opened; the tickets to fill it were selected, including No. 12,122; the entries thereof were made on sheets; they were handed to the “ writer ” to be forwarded according to instructions, or, in absence of instructions, according to the rules of the company. The order in this case contained no instructions, and reached the “ writer ” after the closing of the registry department of the post-office, rendering it impossible to comply with the rules. He therefore' returned the order and tickets to the entry clerk, who canceled the entry which had been made, and handed the order and tickets to another clerk,, whose duty it is to receive such orders as are too late to be filled, and are passed oyer to be filled with tickets for a subsequent delivery. He returned the tickets to the clerk who selected them, who, in the fulfilment of his duty under the rules, canceled these, with all other unsold tickets, before the drawing on the following day.

There is no dispute about the facts, and not the slightest hint of any fraud or unfair practice.

The plaintiff claims that the sale was complete from the moment that defendant selected and set apart the tickets to be sent to him; and he relies upon the elementary principles announced in the Code, that the contract of sale is perfect when three things concur: the thing sold, the price and the consent (C. 0., Art. 2439) ; that consent may be expressed in words or implied from actions (Arts. 1811 and 1816) ; and that “ the sale is perfect between the parties and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for' the object and for the price thereof, although the pbject has not yet been delivered nor the price paid.” Art. 2456.

The real question is whether there did exist an “agreement” as. to the object. There was no express agreement on the part of defendant. Can his assent to such agi’eement be implied from his acts as above set forth?

Article 1816 says: “Actions without words, either ■ written ro spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract.” The article proceeds to mention certain classes of acts from which consent is implied, as for instance: “ To receive goods from a merchant without any express promise, and to use them, implies a contract to pay the value,” etc. -Article 1818 provides: “Where the law does not create a legal presumption of consent, from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge whether assent is to be implied from them or not.”

This is the article which defines our duty in this ease. We are to determine whether, from the acts of defendant, we can imply its consent to a final and binding appropriation of the tickets selected to the order of plaintiff, as the object of the sale. We think we can not. The selection of tickets made by defendant was simply a step in the process of filling an order which the defendant had adopted under its rules. The selection was merely a conditional appropriation of the tickets to the order which did not, and was not intended to, become final or binding until the process had been completed, resulting in the actual filling of the order. When it became manifest that the filling of the order according to its rules could not be completed, defendant had the clear right to cancel the prior inchoate steps which had been taken for that purpose, and to treat the order as not filled. Of this plaintiff had no right to complain. He had notice of the importance of sending his order early and of the danger that, if sent late, the accumulation of orders might render it impossible to give them attention; and he was further advised that, if received too late, his remittance would be applied to the ensuing drawing. This was exactly what occurred. His order came too late to be filled in accordance with the rules of the company. An attempt was made to fill it, which was ineffetual. The company, therefore, did not fill his order. It was never filled; and the appropriation thereto of the tickets selected never became final and binding.

Had the tickets drawn no prize, and had the company, having acted as it did, claimed the right to retain the price, such a pretension would have been absurd.

In this case the company had a perfect excuse for not filling the order, because it was impossible to do so in accordance with its rules; but, even if it had no such excuse and had had time to complete .it, yet if it did not choose to do so and saw fit to cancel the selection of tickets before completing the filling of the order by mailing them, it would have had the right to do so, if its action were free from taint of fraud or malpractice. Says Mr. Benjamin in his work on sales: “A very common mode of doing business is for one merchant to give an order to another to send him a certain quantity of merchandise, as so many tons of oil, so many hogsheads of sugar.

1 ‘ Here it becomes the duty of the -'vendor to appropriate the goods to the contract. The difficulty is to determine what constitutes the appropriation; to find out at what precise point the vendor is no longer at liberty to change his intention.

“ It is plain that the vendor’s act in simply selecting such goods as he intends to send can not change the property in them. He may lay them aside in his warehouse, and change his mind afterward; or he may sell them to another purchaser without committing a wrong, because they do not yet belong to the first purchaser, and the vendor may set aside other goods for him. It is a question of law whether the selection made by the vendor in any case is a mere manifestation of his intention, which may be changed at his pleasure, or a determination of his right conclusive ork him and no longer revocable.” Benjamin, on Sales, Sec. 358.

This is objected to as a common law authority; but it is also common sense, and in harmony with all principles of our own law.

The rules adopted by the company were reasonable and conservative, and necessary for the safety of its correspondents and for the preservation of its own good faith from suspicion or attack. If it should appropriate tickets to orders without dispatching them, or if it should dispatch them only on the day of the drawing, such proceedings would necessarily arouse suspicion as to their honesty and fairness from the very nature of defendant’s business. So the rule requiring tickets to be forwarded by registered mail is manifestly useful and proper.

The acts of defendant relied on by plaintiff only exhibit an intention to appropriate specific tickets to the filling of plaintiff’s order, conditioned on the order being actually and finally filled in accordance with its rules; and when that condition failed, it had the perfect right to abandon the intention and to cancel the inchoate appropriation, which had not become irrevocable.

Judgment affirmed.