text:
    No. 4977.
    W. H. Vredenburgh vs. Lagan & Mackison.
    .A commercial firm can not be held liable on a promissory note signed with the firm name, when it is shown that the note was signed by one oí the partners without the knowledge of the other partner, in a matter out of the usual course of the business of the firm, and was received by the plaintiff with knowledge of the fact that the note was accommodation paper.
    appeal from the Fifth District Court, parish of Orleans. Oullorn. J.

      J. L. Tissot, for plaintiff.

      B. Egan, for defendants and appellants.
   Howell, J.

The defendants have appealed from a judgment against them for the amount of three promissory notes made by the firm to the order of plaintiff. The defense by Lagan, one of the firm, is that he did not sign said notes, nor were they made in the course of his business or with his consent or by his authority; and plaintiff had admitted that he had no claim against this respondent. The defense .by the other partner is a general denial. Pending the appeal, the defendants were declared bankrupts and their assignee made a a party.

The evidence sustains the defense set up by Lagan. It is shown that the note for which the three in suit were given in renewal was made for the accommodation of the party from whom plaintiff obtained it, and to the knowledge of plaintiff when he obtained it; that it was out of the usual business of the defendants, and unknown to Lagan until after the execution of the three notes in suit. Under these circumstances, Lagan should not be held liable.

It is therefore ordered that the judgment appealed from be reversed ■as to M. D. Lagan, and that there be judgment in his favor with his costs, and that in other respects the judgment be affirmed.


source: Caselaw Access Project

author: Howell, J. Leonarb, J.,

license: Public Domain

text:
    No. 5306.
    Lalance Grosjean Manufacturing Company vs. George G. Wolff & Levi.
    The resolutory condition is peculiar to the civil law and does not enter into a contract made in the State of New York.
    A vendor, even if the sale include the resolutory condition, can not, after the goods he has sold have been seized by the sheriff under an execution, seauoster the-goods and divest the sheriff’s possession.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J -

      Breaux, Fenner & Hall, for plaintiff and appellant.

      Labatt, Aroni & Clinton, for intervenor and appellees.
   Howell, J.

The plaintiff, a corporation in the city of New York, sold and delivered, in August, 1873, in said city, to George G. Wolff & Levi, a firm domiciled in New Orleans, certain goods and wares on four months credit, and, upon failure of payment, caused the said goods to be sequestered on the second March, 1874, and sued to dissolve the sale for that cause. The said goods, with all others belonging to the defendants, were then in the hands of the civil sheriff of Orleans, under a fieri facias issued in the suit of A. Hoffnung vs. George G. Wolff & Levi, No. 542& of the docket of said Sixth District Court, and the sale was actually in progress, though these goods were at the time unsold.

A. Hoffnung intervened to maintain the effect of his seizure and resist the demand of the plaintiff. From a judgment in favor of the defendants and intervenor the plaintiff appealed.

The first question presented is, has the plaintiff the right to enforce the resolutory condition; and, secondly, did the seizure, under execution by a third party, defeat that right ?

The sale by plaintiff to defendants was made in the State of New York,, where the common law prevails, while the dissolving condition is peculiar to the civil law. In the case of Johnson vs. Bloodworth, 12 An. 699, it was said: “Slaves bought in other States of the Union are not bought subject to the dissolving condition, which is peculiar to the civil law.”' (See p. 702.) It is fair to say that the resolutory condition, as announced in article 2046 of the Revised Civil Code, was not implied in the contract between plaintiff and defendants in New York.

But, if we be mistaken in the position that this is aNew-York contract,, we think the effect of the seizure under execution and the possession of the movables by the law officer precluded the exercise of that right. This divestiture of possession was not the act of the debtors, who may probably have had no power to do an act to the prejudice of any rights of their creditors; but it was the act of the law,, and the only right of the debtors or other creditors to change that possession, so as to again obtain control of the property, was to pay the judgment under which the seizure was made. Those having a right to or upon the property superior to that of the seizing creditor might have made opposition in proper form to the sale or set up a claim to the proceeds of the sale. The plaintiff has no privilege on the property. The rights to and upon movable property are subject to rules different from those relating to immovables, and by such rules the right to pursue movables out of the possession of the purchaser is accorded by statute in certain specified cases. The right to enforce the resolutory condition is not made one of these cases. The interests of commerce make some such difference necessary, and the business community would feel much alarm at the doctrine that any vendor could dissolve the sale of merchandise found in the hands of a second of third vendee. On either hypothesis plaintiff must fail.

Judgment affirmed.

Leonarb, J.,

concurring. I concur in the decree only on the first ground stated in the opinion of the court, namely, that the contract of sale was made in New York, and that the resolutory condition was not implied in it. The law governing the dissolving condition is not, therefore, before court. It is not in the case, under the facts as we have found them.


author: Wylt, J.

text:
    No. 4670.
    Peter Gallagher vs. Southwestern Exposition Association et al.
    Where a party lets a joh of work to a competent and suitablo contractor, and does not retain or exercise any control or supervision over the work, he can not be held liable to any employee of such contractor for any injury suffered by the! employee while engaged on said work, on account of the fault of the contractor.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      J. H. Grover, for plaintiff and appellee.

      H. N. Ogden, for defendants.
   Wylt, J.

The petition charges, in this case, that the plaintiff, one Peter Gallagher, was, on the twenty-sixth day of December, 1871, employed by the Southwestern Exposition Company and their contractor, or agents, as a laborer to assist in the construction of the building known as the Exposition building, and that while in said employ and engaged in the duties thereof he was seriously and permanently injured by the falling of a wall upon him, through the gross negligence and carelessness of the said company and its agents and contractors. The defense was a general denial. The case was tried by a jury, who, after a patient hearing of the somewhat voluminous evidence, returned a verdict against the said association and Jordan, one of the contractors, in solido, for one thousand dollars damages.

The Exposition Association have alone appealed.

The evidence shows that plaintiff was employed by William A. Jordan, a sub-contractor, and that the work undertaken by Jordan was not under the supervision of the Southwestern Exposition Association. The contract was let out to the lowest bidder, and was awarded to William Arms, who sub-contracted with Jordan. According to the evidence of Shaw, the secretary of the association, who was familiar with all the facts, the lots of ground and every thing were put in possession of the contractor, and the association did not undertake to interfere with the work in any way. The association had no contract with Jordan whatever. There is no doubt that plaintiff sustained injury, and is entitled to damages. Jordan, the sub-contractor, by whom he was employed, has not appealed from the judgment against him. . The question is, does the record present a case entitling the plaintiff to recover against the Soutnwestern Exposition Association, the proprietor for whom the work was done? We think not. The case does not fall within the meaning or provision of article 2320 of the Revised Code, which provides: “Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed; * * * responsibility only attaches when the masters or employers, teachers, and artisans might have prevented the act which caused the damage, and have not done it.”

If the whole work was confided to a capable contractor;, and the proprietor of the ground had no supervision of the work in which plaintiff was employed, as seems to be the case, we find no cause to fix liability for the damage upon said proprietor, tbe Southwestern'Exposition Association. How can we say the employer “ might have prevented the act which caused the damage, and has not done it,” when the record shows that the association had no supervisory control of the work conducted by Jordan? One can not be charged with fault for an act beyond his control. It was the business of the employer in this case to select a suitable and capable person, which was done, and leave the mode of removing the wall, and the details of the work to the control of the contractor. It was the duty of the latter to complete the building according to contract and deliver it to the proprietor. As the proprietor could not control the action of Jordan, the sub-contractor, in removing the wall which caused the damage to plaintiff, the proprietor is not responsible for the fault or negligence of Jordan. In the case of Camp vs. the Church Wardens of the Church of St. Louis et al., 9 An. 321, where the employer was held responsible for damage occasioned by the fault of the contractor, this court based the judgment on the ground that the employer had reserved, in the contract, the supervision of the work, and had interfered therein.

Our conclusion is that the judgment against the Southwestern Exposition Association is erroneous.

It is therefore ordered that the judgment herein be annulled so far as it relates to appellant, and that plaintiff’s demand as to this defendant be rejected, with costs of both courts.


author: Leonaed, J.

text:
    No. 6309.
    State of Louisiana vs. Joquino Florenza.
    An indictment for murder is sufficiently precise and specific, which charges that the accused did willfully, feloniously, and of his malice aforethought, kill and murder the deceased.
    APPEAL from the Superior Criminal Court, parish of Orleans. Steele, J.

      Field, Attorney General, for the State.

      J. J. F. Planchará, for the defendant.
   Leonaed, J.

The defendant having been convicted of murder, was sentenced to death, and has appealed. The only questions of law presented for our consideration are those set forth in defendant’s motion in arrest of judgment, which we transcribe from the record, as follows:

“ First — The indictment does not describe with any precision with what accused committed the crime.
“ Second — Under the broad averment of his killing one certain person, without describing which wounds brought about death, and with what specific arm said particular »wound which caused death was done, said indictment can not stand, because the special matter of the whole fact is not properly set forth in the indictment with such certainty that the offense may judicially appear to the court.
Third — All the constituent facts of murder are not distinctly stated, nor does it contain a specific description of the offense.”

The indictment charges that the accused did willfully, feloniously, and of his malice aforethought kill and murder one Marie Louise. This, by the express provisions of our law, is sufficient. Revised Statutes, section 1048.

The judgment of the Superior Criminal Court is affirmed.


author: Mor&ah, J.

text:
    No. 5201.
    J. H. Mitchell, Executor, vs. Abraham Levi.
    A bill of exception to evidence, on the ground that it seeks to reopen issues that have been settled by a previous judgment, will not he sustained, except on the basis of a plea of res adjndic.ata. unless that plea has been specially made the evidence will bo admitted.
    where a debtor puts notes due him by a third party into the hands of his creditor, as collateral security, and.the creditor, with the consent of debtor, delays action on the notes until the maker of them -becomes bankrupt, the loss must fall on the debtor.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      John Bay, for appellant.

      Bace, Foster & Merrick, for appellee.
   Mor&ah, J.

John Liles owed A. Levi $7861 27, for which amount Levi had obtained judgment. Liles died, and Mitchell was appointed dative testamentary executor of his will. Levi called upon the executor for an account, which he was ordered to present, and which he did present. In the petition accompanying the account Mitchell denied that the estate which he represented was indebted to Levi. He alleged that Liles had delivered to Levi two notes due to him (Liles) by one William Hogan, of five thousand dollars each, as security for the payment of the debt due by him to Levi; that Levi obtained judgment upon these notes in his own name, and granted a, stay of execution thereon; that these notes exceeded by three thousand dollars the sum due by Liles to Levi.

No judgment was asked against Levi for the balance alleged to be due to the estate.

Levi answered the petition which accompanied the account. He averred that the Hogan notes were left with him as collateral security by Liles for the amount due by him; that he retained the notes until he placed them in the hands of an attorney for collection, with instructions that if Liles paid what he owed the notes of Hogan were to be returned to Liles; that Liles confessed judgment in favor of Levi, and requested the attorney to sue Hogan in Levi’s name, so that the money he would receive from Hogan would assist him in paying Levi; that he, Levi, never received any thing from Hogan; that Hogan, subsequent to the judgment against him, and shortly after the first payment thereon became due, went into bankruptcy, ahd that the judgment against him is worthless.

Upon these issues the case was tried in the parish court of Ouachita. The judge dismissed the opposition of Levi, on the ground that he ha,d not used proper diligence to collect the Hogan judgment, and reserved the right of the administrator of the succession of Liles to recover from Levi the difference between the amount of the judgment, interest, and costs which he obtained against John Liles in his life-time and the amount of the judgment, interest, and costs which he had obtained against William Hogan.

On appeal, the judgment of the parish court was affirmed by this court. See 24 An. p. 324.

The object of this suit is to recover 'from Levi the difference between the amount due by Liles to him and the amount due by Hogan to Liles, viz.: $3016 70, with eight per cent interest from the twenty-sixth of April, 1866.

Defendant admits that in the year 1862, and during the late war, he received from Liles the notes made by William Hogan, but he says that one of the notes was past due when they were given to him, and that the other about a year thereafter; and he avers that he received them as a special favor to Liles, who, with Hogan, went into the Confederate lines, while he, Levi, remained within the Federal .lines; that when the war ended, Liles being indebted to him, and. being anxious to obtain an extension of time for the payment of his debt, and not wishing to sue his neighbor, Hogan, in his own name, desired him, respondent, to institute the suit, and .to place them in the hands of a certain attorney, who was also the attorney for Liles; that the suit was brought in his, respondent’s, name at the request of LileS, and as a favor to him, at the same time that it was. to stand as a collateral to secure' the payment of the debt due by Liles to him, and. they were placed under the control of the attorney, who appears to have been counsel for all the parties to these transactions. He avers that in April, 1866, Hogan, with the consent of •Liles, confessed judgment in his, respondent’s, favor, with stay of execution to the tenth day of March, 1867,1868,1869, respectively, which was nearly the terms of the judgment rendered -in favor of the respondent against Liles, and that whatever indulgence was granted by him to Hogan was granted with the consent of Liles; he avers that on the thirteenth of March, 1868, Hogan having neglected to pay, execution issued against him, and his estate was seized, but that on the eleventh of April, following, he went into bankruptcy, and was subsequently declared a bankrupt; that upon his schedule he valued his real estate at $6710, and the notes due him at $206 70, his furniture at $73, his horses, mules, and cows at $760, and farming implements at $134; that the lands sold for $2000 and the cattle for $250, the whole of the proceeds being consumed in costs and charges, not even leaving enough behind to pay the taxes, much less Hogan’s ordinary creditors, and that he, respondent, had no power to prevent these proceedings in bankruptcy. He avers that, admitting his agency and responsibility thereunder (which he denies), at no time since the close of the war was Hogan’s property of sufficient value to pay his debt to Liles and the privileges resting upon it, and- he says that the allowance of credit already made to Liles’s estate, and against him, is greater than the value of any property, rights, or credits of Hogan, which could have been made available toward the payment of the debt due by Liles to him.

Upon this state of pleading the case was tried. From a judgment in favor of the defendant plaintiff has appealed.

On the trial of the case in the district court the defendant offered evidence in support of the allegations in his answer, and to show that the claim of the plaintiff against him was not legal or just, to the introduction of which plaintiff objected, on the ground that in the case of the succession of Liles all the questions raised in this case, and particularly the question as to whether the defendant was indebted to Liles’s estate on account of his laches in not collecting the notes due by Hogan and held by Levi as collateral, had been decided, and that that question was res judicata between the parties. The district judge permitted the evidence to be introduced, and the plaintiff reserved his bill of exception.

The first question to be determined is whether or no the district judge erred in allowing this testimony to be received in evidence. It seems to us that a simple fact shows the correctness of his ruling. It is that the plea was not made. The plea of res"judicata is a peremptory plea, and may be made at any stage of the proceedings, but it must be pleaded. See Hennen’s Digest, vol. 2, p. 1168, No. 1. There is no such plea in the record. It is true that the objection to the introduction of the testimony was based upon the fact that the matters sought to be investigated had already been passed upon, and had obtained the authority of the thing adjudged. But reasons, however valid, can not take the place of a plea, and it is the plea which, if well made, is the bar to the investigation of the subject which is submitted to the judge for his examination and decision.

But, if we pass from this point of view to another, it is still evident that the district judge ruled correctly. The basis of res judicata is a judgment. In the case before us the defendant is sought to be made liable for a sum of money. There has never been any judgment against him condemning him to pay any sum. If there had been, there would have existed no necessity for this suit. In the succession of Liles he claimed from the executor the payment of a sum of money. The court decided that he had no claim, because, acting as the agent of Liles, he had caused him damage exceeding the amount of his claim. But no judgment was asked against him, and no judgment was rendered against him. The right of the succession to proceed against him was reserved, but so, also, we apprehend, was the right of defense reserved to the defendant. In so far as the succession of Liles is concerned, the decision that it owes the defendant nothing has become final, but whether the defendant owes the succession of Liles any thing is a question the right to investigate which was reserved, and is the one which we are now to determine. Whether he is liable or not depends entirely upon whether he was guilty of laches in the exercise of his agency. This is a new suit, instituted to make him responsible therefor. And this suit the defendant has the same right to defend that the plaintiff had to bring it.

On the merits, the evidence satisfies us that in the litigation between Levi and Hogan Levi acted in the interest of Liles, and that whatever he did as regards the judgment obtained against Hogan, and the time granted to him, was done with the knowledge and approval of Liles. We are also of opinion that at no time after the judgment rendered in favor of Levi against Hogan, and before execution issued thereon, would his property have produced, under a forced sale, any thing like the sum due by Liles to Levi.

We are also of opinion that Levi did all that it was in his power to do to realize the judgment; that the delay granted to Hogan was granted with the consent of Liles; that Hogan’s going into bankruptcy was beyond Levi’s control, and that this proceeding on Hogan’s part stopped all proceedings against him on the judgment obtained by Levi. We are also of the opinion that issuing execution was as far as Levi could go, for once the property of Hogan was in possession of the courts of the United States, we do not see how the sheriff, to whom the writ of fien facias issued, could get it back. In Flower vs. McMiken, 2 N. S. 132, the defendant was held liable because after having issued execution, which was returned nulla bona, he failed to issue a ca. sa. But the law at that time authorized a party to issue such a writ. Now he has no such right. The defendant was there held responsible because he had not exhausted the remedies granted by law. Here the remedies were all exhausted.

We do not dispute the doctrine contended for by plaintiff, and recognized in Collins vs. Andrews, 6 N. S. 195, and other authorities, that it is the duty of an agent to prove the facts which will discharge him from liability, but we think in the case before us that this proof has been made:

First — By the testimony, which shows that whatever the defendant here did was done with the knowledge and approval of Liles;

Second — By the fact that he was stayed in his proceedings by a superior authority; and

Third — That at no time after the suit was brought against Hogan would his property have sold for enough to pay the debt due by Liles to the defendant.

We do not think that Liles or his succession has suffered any loss by reason of Levi’s conduct, and are therefore of opinion that the judgment of the district court should be affirmed.

Judgment affirmed.

The Chief Justice dissents, and will file his reasons hereafter.


author: Leonard, J.

text:
    No. 5284.
    Bogart & Culyer vs. the New-Orleans Park.
    ' where a party is employed by the authorized agent oí a corporation to do certain work, at a stated salary, and it is shown that he has been ready and prepared at all times during the term of his engagement to do the work, he is entitled to recover the whole amount of his salary, without regard to the amount of work he has actually done.
    from the Superior District Court, parish of Orleans. Hawkins, J.

      George L. Bright, for plaintiffs and appellants.

      Cotton & Levy and J. Q. A. Fellows, for defendants.
   Leonard, J.

The plaintiffs are landscape architects and engineers, and bring this suit against defendants on a contract for professional services.

On the fifteenth day of June, 1872, the Board of Commissioners of the New-Orleans Park passed the following resolution:

Besolved, That the president of the board be and is hereby authorized to contract with Messrs. Bogart & Culyer, of New York, civil engineers, and engage their services for one year from June 1, 1872, at a salary of five thousand dollars per annum and as additional compensation for their services the rate of five per cent on the amount expended •in the improvement of the New-Orleans Park during said period.”

In pursuance of this resolution the following contract was entered into on the twenty-sixth day of June, 1872:

“ Under authority of the resolution on the reverse hereof written, A. W. Smythe, president of the commissioners of the New-Orleans Park, ■hereby contracts and agrees with and engages Messrs. Bogart & Culyer as the engineers and landscape architects for the construction and improvement of -the park, under the control of the commissioners for the term, at the rate of compensation, and under the condition specified in said resolution.
“ And we, Bogart & Culyer, in consideration of the foregoing promise, bind ourselves to do and perform all duties requisite in the premises as engineers and landscape architects.
“As witness our respective hands and seals.
“(Signed) A. W. Smythe, President.
“ BOGART & CULYER,
“ By John Bogart.
“Attest: Frank H. Wilson.
“Attest: George Pierce.”

Plaintiffs acknowledge the receipt of twenty-five hundred dollars on account of this contract, and now sue to recover the remainder.

The answer is a general denial.

It is not urged that the defendants were without authority to enter into this contract, nor that the sum stipulated to be paid to the plaintiffs for their services was in any degree exorbitant or unreasonable.

The profession of Messrs. Bogart & Culyer is one requiring the highest degree of artistic skill and experience. It involves a knowledge of engineering, of architecture, and of landscape gardening. Mr. Bogart is at the head of his profession in this country, having in a great manner designed and constructed the Central Park, of New York City, the most successful work of the kind in the world. A “ study for the improvement of the City Park of New Orleans,” which is annexed to the transcript, is evidence of his taste and culture.

It is urged by the defendants that plaintiffs never performed the work that was expected of them, and that they failed to furnish certain plans which they were directed by the board to prepare. It seems, however, that Mr. Bogart spent several weeks in New Orleans, and was constantly engaged while here in an examination of the grounds in charge of the park commissioners and in the study of all matters pertaining to their development and their improvement. The members of the firm held themselves in readiness to go to New Orleans whenever their presence was desired, and a profitable engagement was declined on account of its probable interference with their duties here. There is some evidence that they did not do all that was expected of them, but the reason appears to have been that the park commissioners failed to perform their part of the contract. Dr. Smythe testified as follows:

. “Question — Did the Board of Park Commissioners ever call upon them (Bogart & Culyer) to do any work that they did not do?.
“Answer — No, sir; they did not.
“ Question — Do you know that Bogart & Culyer have at all times been ready to do any thing demanded of them ?
“Answer — I believe they were. If we had called upon them, I have no doubt but that they would have done so.
“ Question — Did you have plans that you could work by ?
• “Answer — No; we would have had them if we had requested them. The delay was not owing to Messrs. Bogart & Culyer.”

In view of this testimony from the president of the park commis■sioners himself, the officer appointed by the board to contract with Messrs. Bogart & Culyer, and under whose superintendence they would be expected to act, it is impossible to say that the plaintiffs have been guilty of any breach of their contract. The defendants can not well contradict their own witness and president. Whether the contract was necessary and profitable to the defendants, it is not for us to determine. If one should engage the services of an expensive landscape gardener at a stated salary per annum, and should afterward discover that he ■coijld not spare the money to expend in the improvement of his grounds, he would nevertheless he bound to pay the salary that he had stipulated. But within the scope of their powers corporations are bound by the same laws and held as stringently to their contracts as individuals. If the stockholders or the citizens subject to their jurisdiction are injured by the acts of their agents, they must look to those agents for redress or see that they employ more faithful ones in the future. It is not in the power of the courts to relieve them from the effects of contracts which were regularly entered into by third persons dealing in good faith with their officers.

It is therefore ordered that the judgment'of the Superior District Court be reversed, and that the plaintiffs, Bogart & Culyer, recover of the defendants, the commissioners of the New-Orleans Park, the sum of twenty-five hundred dollars, with five per cent, interest from June 1, 1873, and costs of both courts.


author: Howell, J.

text:
    No. 6252.
    The State vs. Jose Gruso.
    where a party is prosecuted for a crime against nature, the declaration made by the prosecuting witness about the time he was injured and out of the presence of the accused, are hearsay and will not be admitted except mei’ely.to corroborate the testimony of the witness given on the trial, when that evidence has been impeached.
    The fact that the witness made complaints about said time may be proved, but the complaints themselves can only be shown in the way of corroboration.
    from the Superior Criminal Court, parish of Orleans. Steele, J. Trial by jury.

      Field, Attorney General, for the State.

      Sambola & Fueros, for defendant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to imprisonment at hard labor .for life for the crime against nature. On the trial a bill of exceptions was taken to the ruling of the court permitting the witness, Gaspard, a police officer, to answer the question “ What did the prosecuting witness say when he came to the parish prison ?” which question was propounded by the State to corroborate the testimony of the prosecuting witness, before it was attacked, and was objected to on the ground that statements made by the prosecutor out of the presence of an accused are simply hearsay evidence, and as such inadmissible; the answer was a repetition of what the prosecuting' witness had testified as to the circumstances or particulars of the transaction.

We think the court erred. The fact that the party injured made complaint immediately or soon after may be proven, but the particulars or circumstances narrated can not be given, except to confirm or corroborate the testimony of such, party when impeached. Such statements, out of the presence of the accused, are hearsay, and are admissible at the proper time, as corroborative evidence, to show that the injured party made them just after the occurrence. ■ ’

Such is the rule in prosecutions for rape, (see 3Greenleaf 213; Wharton Am. Crim. Law, vol. —, section 1150; Roscoe Or. W., section 863), and no lighter rule should obtain in the crime in question.

It is therefore ordered that the judgment appealed from be reversed, and the verdict of the jury set aside, and the cause remanded for further proceedings according to law. '

Mr. Justice Leonard takes no .part in this decree.


author: Moegan, J. Wyly, J.,

text:
    No. 5207.
    William Bogel vs. Teutonia National Bank.
    The cashier of a bank draws a note to the order of A, who discounts the note at the bank and deposits the proceeds of it there. A is a regular customer of the bank, and the cashier is his attorney in fact, authorized to transact all his bank business. The note falls due and is not paid. No protest of the note is made. The cashier instructs that the amount of the note be charged to A’s account, which is done. A protests against it, but only to the cashier, to no other officer of the bank. A’s account after that is balanced several times with the amount of the note always standing against him, and he makes no objection to it. After considerable delay he sues the bank for the amount of the note.

      JTeld — That he can not recover; that the am ount of the note was charged to him by order of his authorized agent, and by failing to object to it when his account was so often balanced he acquiesced in the instructions given by his agent, the-cashier.
    APPEAL from tlie Fifth District Court, parish of Orleans. Gullom, J.

      C. T. Bemiss, for plaintiff and appellee.

      Kennard, Howe & Prentiss. for defendants.
   Moegan, J.

A note drawn by J. M. Wagner and indorsed 'by William Bogel, for six hundred dollars, was discounted by the Teutonia National Bank, and the proceeds, less the discount, were placed to Bogel’s credit, and were used by him. Wagner was the cashier of the bank, and was, also, Bogel’s attorney in fact, authorized to transact his bank business, When the note fell due neither Wagner nor Bogel were in the city. It was not protested. Some time after Wagner returned, his attention was called to the fact, and the amount of the note was charged to Bogel’s account. Bogel was a customer of the bank. When his account was balanced he called on the cashier and told him that there was error in charging him with the note in question, and he claimed that he was discharged from responsibility thereon because it had not been protested. No correction was made of his account, which was several times afterward balanced without objection from him. Eighteen or nineteen months after his account was balanced he claimed the amount of the note from the bank, and on its refusal to pay instituted this suit to recover it.

It is evident that if ho succeeds in his effort he will recover from the bank six hundred dollars without any consideration therefor, and the bank will bo without any recourse, for its former cashier, and Bogel’s agent, who drew the note and who was responsible to the bark, has left the State.

As Wagner was authorized by Bogel to transact his bhnk business, he was authorized to cause the amount of the note to be charged to Bogel’s account, aDd although Bogel objected to this at the time to Wagner, but not to any other officer of the bank, and several times accepted his account as balanced by the bank without its being corrected in that particular, he must, we think, be held to have acquiesced in the, act of his agent, which, after all, was only in discharge of a debt which he owed.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

Wyly, J.,

dissenting. Defendant, who was sued for an alleged balance •of account of $564 76, appeals from the judgment herein in favor of -.plaintiff for said amount.

The material facts are: Plaintiff kept an account with the defendant '¡bank; in July, 1871, he obtained the discount of the note of J. M. Wag:ner for six hundred dollars, payable to the order of and indorsed by ¡plaintiff, and the account of the latter was credited with the proceeds of ■said note; Wagner was the cashier of the bank; he also held the power ■of attorney of plaintiff; when the note matured in August, 1871, it was ¡not protested,' because, says one of the witnesses, Wagner was absent •from the city on business for the bank, and had requested if the note ¡matured in his absence and “Bogel was not in the city, to let it lay over ¡until his return;” and this witness further stated that at the maturity of ¡the note he sent to Bogel’s office and was informed he was absent at .Jefferson, Texas; Bogel, however, testifies he was in the city at the ma•turity of the note, and that Wagner was absent at the time the noté was discounted, and continued to be absent till after the maturity of the note; •the note matured August 21,1871; plantiff’s bank-book was balanced in September, 1871, also on the seventeenth of February, 1872, and the said .note was not charged up; it was charged up when the book was bal-aneed in May, 1872, nine months after the maturity of the note; thereupon plaintiff went to the cashier and objected to it, because, as he says, “ he did not owe it; it had not been protested.” The entry of the note in the bank-book continued each time it was balanced down to the institution of this suit in 1873 without further objection by plaintiff. The reason why the note of Wagner, which was indorsed by plaintiff, was not protested, and the circumstances in relation to it, are thus stated by one of the clerks of the bank who testified in behalf of defendant: “Upon consulting the vice-president of the bank, knowing that Mr. Wagner held the power of attorney for Bogel and acted as agent, he deemed it unnecessary to have it protested, because it would be arranged on the return of Wagner from the North in a month or six weeks. Mr. Wagner returned, and I presented him the note saying it had not been charged up. He took the note and said nothing further about it and placed it in the portfolio, until some six or seven months afterward the directors directed an • examination to be made of the portfolio of the bank and discovered six hundred dollars missing. Having traced the matter through all the books and found it was this note Mr. Wagner-discounted for account of Wm. Bogel, I told Wagner the fact. He went to the portfolio and brought out the note. He said it was an omission on his part, and should have been charged up at the time to Bogel. • This was May 23,1872. I made a note of it, and asked the book-keeper to charge it to the account of Bogel, and directed him to send immediately for the book of Bogel and have it balanced, with this charge included, and return him the .note. This was done two days after the note was charged up; the book and the documents were returned to Bogel. This book, at the request of Bogel, was subsequently balanced in July; again it was balanced in the month of September the same year. Bogel went to Europe last year in May, and his book was again balanced at his request. During the whole time I heard nothing of the note at all until November, acting cashier of the bank Bogel came in and said he had a claim against the bank. This was after Wagner’s departure. Something surprised, I asked the nature. He told me the note never was protested, and he was going to sue the bank for it. This was nineteen months after the note was charged up. In the interim I heard nothing of it. No protest from Bogel, and inasmuch as the book was balanced two days after it was charged and returned to him, I presumed he acquiesced in the settlement. I have heard nothing more about it.”

The theory of the defense is: The note was an accomodation note; that Bogel actually' got the money as was intended; that Wagner, in directing the note not to be protested and subsequently to be charged up to Bogel, acted for Bogel under the power of attorney he held from him; that if authorized to give such instruction his act was acquiesced in, or the charging up of the note in the bank-book was acquiesced in by Bogel, and impliedly ratified.

The difficulty is: There is no proof showing the note was an accommodation note, and that Wagner had authority, express and special, to act in the manner stated in behalf of Bogel and thereby to bind him. When Wagner, nine months after Bogel had been discharged as an in-dorser for want of notice of dishonor, directed the note to be charged up to Bogel, he did not bind the latter unless he had special authority from Bogel to do so, and such authority is not • disclosed in the evidence. Besides, Wagner was not in a position to represent Bogel in this matter under the power of attorney he previously held (the extent of which is not given in the evidence), because in this instance his individual interest was in conflict with his duty as a fiduciary. He was the maker of the note, primarily and absolutely bound for its payment, while Bogel was an indorser who had been discharged from the obligation, therefore when he directed the note to be charged to Bogel he was releasing himself and binding his principal. The act of Wagner, directing the charging up of Bogel’s account with the note in question, and the entry when Bogel’s bank-book was balanced in May, 1872, showing that Bogel was charged with the note nine months after his discharge as án indorser, were not acquiesced in and impliedly ratified by Bogel, because the proof shows when informed of the entry in the bank-book he went to Wagner, the cashier, the proper officer of the bank, and objected to it, saying he “did not owe it (meaning the note); it-had not been protested.”

After promptly objecting to the entry of the note when it was first included.in balancing his bank-book, Bogel was not bound to repeat his objection at subsequent periods when the bank-bóok was balanced. Nor was he bound to discontinue business with the bank in order to preserve his rights in the premises. He had been discharged from his obligation as an indorser, and there is nothing disclosed in the evidence to justify the conclusion that he subsequently incurred liability on account thereof.

I therefore dissent in this case.


author: Manning, C. J.

text:
    No. 6437.
    Charles Lafitte vs. Morgan Morgans.
    The State tax referred to in the act of 1872, which act forljids the police jury of any parish from assessing and collecting any tax exceeding the one hundred per centum of said Stats tax, is merely the tax levied by the Legislature to pay the public debt and provide for the general expenses of the government. It does not include the levee, school, and other taxes levied for special purposes.
    Should the necessities of a parish demand the assessment of any larger tax, such tax must first be authorized by a vote of a majority of the voters of the parish.
    APPEAL from the Parish Court of the parish of St. Charles. Farhart, J.

      Breaux, Fenner & Sail, for plaintiff and appellant. S. St. Martin, District Attorney pro tempore and Parish Attorney, and James _D. Augustin, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The tax collector of the parish of St. Charles was proceeding to sell the property of the plaintiff to enforce the payment of the parish tax for 1876, assessed upon plaintiff’s property at-the rate of fourteen and a half mills on the dollar, when plaintiff paid a portion thereof, viz.: the assessment of four mills on the dollar, equal to that levied for the general expenses of the State government and the school tax, and enjoined the collection of the residue upon various grounds, of which the first is that the police juries of the parishes are prohibited from levying a tax for any parish purpose which shall exceed one hundred per centum of the State tax for that year, and that the State tax was only four mills on the dollar.

The law upon which the plaintiff relies to support that ground of injunction is the prohibition contained in the following section of the act of 1872:

“Nor shall the police jury of any parish levy a tax for any parish purpose, except to pay indebtedness incurred prior to the passage of this act, during any year which shall exceed one hundred per centum of the State tax for that year, unless such excess, whether levied by village, city, or parochial authorities, shall first be sanctioned by a vote of a majority of the .voters of said village, city, or parish, at an election held for that purpose.” Acts of 1872, p. 56.

In the revenue act of the previous year, which was in force in 1876, and governed the assesment for that year, it is enacted that “an annual acl valorem tax of four mills on each dollar of the valuation for each year of all the real and personal property in this State subject to taxation shall be assessed, levied, and collected in current money for the purpose of supporting the government of the State, of paying the public debt, and of promoting the public interest.” Acts of 1871, p. 104.

The defendant denied that the assessment of fourteen and a half mills on the dollar by the police jury was in contravention of that law, inasmuch as that was the sum total of the State taxes for that year, and prayed a dissolution of the injunction with one hundred per centum upon the taxes enjoined as damages. The judgment was in his favor and in accordance with that prayer.

The tax of four mills on the dollar is for the purpose of supporting the government of the State, of paying the public debt, and of promoting the public interest. Other taxes are imposed under authority of special laws for special purposes; e. g., one to protect the lands from overflow by the construction and repair of levees, another for the support of the public schools, a third to pay the inrerest of the public debt, etc., and these can not be diverted from the purpose to which they have severally been consecrated. If the tax of four mills on the dollar is deemed sufficient to defray the expenses of the State government, it may reasonably be inferred tnat the General Assembly deemed a similar tax adequate to the support of the parish government, and that the restriction imposed by the act of 1872 was intended to be measured by the rate of taxation authorized each year for the government of the State.

An old and sound rule for the construction of statutes is that inquiry must bo made of the mischief to be remedied, and thus ascertain the motive which impelled the Legislature to enact the new law.

Blackstone says: “ The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the Legislature to enact it.” 1 vol., 61, Oom.

It is a part of the public history of the country that for several years immediately preceding the enactment of the statute we are considering the parochial authorities of many parishes had made lavish and wanton expenditures, and that practically their power to impose taxes was unlimited in their own opinion. It was exercised without restraint. The .reports of this court exhibit to what extent this power was used and for what purposes. Manifestly that was the cause that moved the Legislature to enact this act restricting their power within specified limits.

The defendant insists that all of the taxes levied by authority of the State, viz., the levee tax, school tax, interest tax, the tax for the support of the State government, etc., are but one tax. This, theory is necessary to sustain his argument that the expression “ State tax” used in the statute means all the State taxes, but the fact is otherwise. The tax of four mills on the dollar for the expenses of the State government is imposed by the act of 1871; that for the payment of the interest on the public debt by an act of 1874, (Acts, p. 39) and that for the construction of levees by a later act of same year. Idem, p. 95.

The view we have taken of this meaning of the statute of 1872 is confirmed by other acts of the Legislature. In 1870 it was enacted that “ neither police jurors nor other parish authorities shall make appropriations or expenditures for the purpose of making or repairing public roads or bridges until provision for the payment of such appropriations or expenditures shall have been made by levying a special tax on all the real and personal property in the parish, and payment shall not be made out of any other fund.” Acts 1870, p. 47.

So again: “ The electors of a district, when legally assembled, shall have power to levy such tax, not exceeding three mills on the dollar, to purchase or lease a school-house, and to build a school-house, and for compensation of teachers.” Revised Statutes of 1870, section 1276.

The analogy between the power exercised by the General Assembly in imposing taxes for State purposes and that conferred by it upon- the police juries for parochial purposes is complete. While a tax is imposed by it for the support of the State government, and provision is made by special laws for special purposes, so in like manner it restricts the police juries to a tax for the support of parochial government of one hundred per centum upon the sum or rate it has imposed for the State government, and empowers those bodies to levy special taxes for defined purposes. Nor has the Legislature omitted to provide for other and special contingencies. If an extraordinary emergency shall demand it, a higher rate of taxation is permitted, to be levied if it “ shall first be sanctioned by a vote of a majority of the voters at an election held for that purpose,” and the power to levy a tax to pay indebtedness incurred prior to the passage of the act of 1872 is specially excepted from prohibition as to the rate specified therein.

The opinion we have expressed upon the ground of injunction just examined renders unnecessary a discussion of or decision ujion the other grounds urged by plaintiff.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be avoided and reversed, and that the injunction be perpetuated, and the plaintiff have and recover of the defendant the costs of both courts.

Behearing refused.


author: Manning, C. J. DeBlanc, <T.

text:
    No. 6108.
    Adolphe Gaidry vs. G. Lyons, Sheriff, et al.
    Property which a debtor has conveyed to another by a simulated sale may be seized by a creditor, in whatever hands it may be found. In such case no preliminary revocatory action is necessary.
    The conversations, and admissions of one of the parties to an alleged fraud, or simulation , are admissible in evidence, even though they have occurred out of the presence of the other parties.
    Where fraud or simulation is at issue, any act of one of the parties to it, bearing on the issue, is relevant. In such cases a large latitude in the admission of evidence is not merely permitted, but enjoined.
    APPEAL from the Fifteenth Judicial District Court. Beattie, J.

      N. H. Bightor and JS. W. Blake, for plaintiff and appellant. Goode eft Winder, for defendants.
   The opinion of the court was rendered by

Manning, C. J.

On the Motion to Dismiss.

The defendants and appellees move to dismiss this appeal on the grounds that there was no legal motion for an appeal made in the lower-court, and no legal order of appeal granted.

The minutes of the court showr that the motion was made in open court, and the order entered in form. The motion to dismiss is therefore-refused. ...., ,,>•

On the Merits.

This is an injunction obtained by plaintiff restraining the sheriff of the parish of Terrebonne, and Lapéne & Ferré, judgment creditors of Theodule Dnplantis, from selling certain sugar and molasses seized by the sheriff under a writ of fieri facias issued at the instance'of those creditors.

The facts need to be detailed. On the sixteenth of February, 1870, Theodule Duplantis executed an act of mortgage to Lapéne & Ferré to secure two notes of $5847 35 and $3500, in which his wife makes the usual renunciation. The property mortgaged is a sugar plantation composed of six tracts of land originally, each one of which is specifically described, with the engine, machinery, and buildings.

On the twenty-seventh of January, 1873, Lapéne & Ferré instituted suit against Theodule Duplantis for $11,156 76, subject to a credit of $5774 32. This was on account, and it does not appear that either of the •above notes was included in that suit.

Nine days after the filing of that suit, viz.: on February fifth following, Theodule Duplantis leased to his brother Marcel the six tracts of land described in the mortgage above recited, and sold him five other tracts. The lease was for three years, commencing with 1873, and the condition the payment of two thousand dollars per annum, for which.notes were executed by Marcel.

On the sixteenth of May of the same year judgment was rendered in favor of Theodule Duplantis’s wife against him'for $2175, with interest from the above date, and recognizing a mortgage in her favor, dissolving the community, etc.

On the twenty-fourth of the same month Theodule Duplantis conveyed by notarial act to his wife the six tracts of land mortgaged to Lapéne & Ferré in 1870, and leased to Marcel three months before for $3289 68, the wife paying by acknowledging satisfaction of her judgment, and assuming the payment of a mortgage note of her husband to one Barilleaux for $1111- 98. Marcel witnessed the act.

On the twenty-ninth of November of the same year Lapéne & Ferré obtained judgment in their suit against Theodule Duplantis for $2908’78 and interest.

On the twenty-second of December following Marcel Duplantis sublet to Adolphe Gaidry, the plaintiff, the property purchased by him from Theodule the previous February, and also the six tracts leased by him from his brother in the same act, which are the same tracts that his brother had sold to his wife in May, to which sale Marcel was a witness. This lease was for 1874 only, and the price was eight hundred dollars, to be paid early in the year.

It was not until the first of December, 1874, that execution was issued ¡by Lapéne & Ferré on their judgment, and four days thereafter Gaidry enjoined further proceedings, upon the ground that the property seized belonged to him, having been produced on the plantation of which he was lessee, and which was cultivated by him, and of which he was in possession at the time of séizure, both of plantation and produce.

The defendants, Lapéne & Ferré, deny this, and aver that their debtor, Theodule Duplantis, was in possession of the plantation that year, and had been for thirteen years continuously, and was also in possession of .the produce seized; that the lease of the plaintiff from Marcel Duplantis, as well as that of Marcel from their debtor, was a “ sham and a myth/'" and the whole transactions of these parties were simulations contrived for the purpose of, defeating the claims of the defendants against the owner of the plantation; that the crop of 1874 was made by that owner, Theodule Duplantis, and belonged to him, a portion of the advances, necessary to make it having been furnished by Gaidry; that Theodule was. insolvent or greatly embarrassed when the pretended lease was made by him to his brother, and was in no better condition when the brother sublet to Gaidry, and is insolvent now; and his condition was well known both to Marcel and Gaidry; that these leases had no real existence, but were simulated contrivances made by these three parties, to obstruct defendants in the pursuit of one of them who was their debtor.

Before entering upon an analysis of the evidence, it will be convenient to dispose of a point made by the plaintiff and insisted on by him with pertinacity, viz.: that the defendants can not attack the lease of Gaidry from Marcel Duplantis in this manner, but are obliged to resort to a direct-action to annul it, much less can they seize property claimed under that lease as Gaidry’s to satisfy a judgment against another person, when the title to that property was unassailed at the time of seizure, and that, the burden of proof rests upon the party charging simulation in that case. In support of this position great reliance is placed upon the case of Pierce vs. Clark, 25 An. 111, wherein the following language is used: “It is the well-settled jurisprudence of this court that the title, to property can not be attacked collaterally, and that where a judgment creditor-seizes property as belonging to the judgment debtor, but the title to which stands in the name of another, he assumes the burden of showing simulation.”

The doctrine is stated too broadly, and requires modification. The actio Pauliana of the Roman law, which is our revocatory action, is to set aside contracts which have a real existence, but which the law will not permit to impede the creditor in recovering his debt, and is quite distinct from that of .which the object is to have a simulated sale decreed such. A simulated transfer of property vests no right in the transferee, and is not subject to the rules of real contracts operating injuriously to creditors, who may proceed as if no such transfer had been made, and if enjoined may plead and show the simulation on the trial of the.injunction. That is the doctrine enunciated in the earliest of our reports, and maintained by a long line of decisions. In one it is declared that “ where the sale is purely simulated and fictitious, and when the party remains-in possession, the burden of proof is upon the party claiming title to. show that the sale is bona ficle or real.” Haile vs. Brewster, 13 An. 155. It had already been held that “ simulation gives neither possession nor title, and that no act of the parties to a simulated sale can be recognized as affecting the rights of creditors to the property of their-debtor.” Cammack vs. Watson, 1 An. 132; Hobgood vs. Brown, 2 An. 323. Again it is said: “The judgment creditor is notbound to resort to a revocatory action before seizing property which he believes to belong to his debtor, and to be held by a third person under a simulated sale.” Clark vs. Bank of Alabama, 3 An. 325.

“It is the continued possession of the vendor, acting as owner after the sale, which creates the presumption of simulation and imposes upon the vendee, as regards third persons, the burden of proving the validity of the sale.” Lindeman vs. Theobalds, 2 An. 912.

“ The chapter of the Civil Code regulating the revocatory action is not applicable to eases of simulation. In these latter the sheriff may seize notwithstanding the apparent transfer of the property by the defendant in execution.” Enswiler vs. Burnham, 6 An. 710.

“ A simulated title confers no right whatever. No action is necessary to annul it.” McMartens vs. Place, 8 An. 431.

And in a recent case it was held that “ real property in possession of a party under a recorded title translative of property can not be seized by a judgment creditor of the former owner unless it be shown that the sale was simulated.” Anderson vs. Hoy, 23 An. 175.

Several bills of exception wore taken by the plaintiff to the testimony. The first to the ruling of the court permitting Theodule Duplantis to testify as to the real ownership of the property seized, the objection being that he was estopped by his “ declaration that it was Gaidry’s,”unade in his application to bond it. The law of estoppel does not apply here. A man may vary or contradict his own testimony. That will impair or destroy his credibility, but it is competent to hear it. The second bill is to the ruling of the court permitting the same party to testify as to the motives which induced him to lease his plantation to his brother, the objection being that such evidence was inadmissible until the lease was produced. The lease was introduced in evidence during the trial. It would have been more regular, however, to have laid the basis for the evidence by first offering the lease. The third bill was to the proof of declarations of Theodule Duplantis concerning the plaintiff testified to by Smith, on the ground that they were hearsay. The evidence was admissible. “ Conversations or admissions of the parties implicated in the fraud or simulation may be offered by creditors, the- objection to such evidence going to the effect or weight of it when the declarations .are not made in the presence'of the other party.” Davis vs. Steon, 15 An. 177.

The defendants take a bill to the testimony of Surle, on the ground of its irrelevancy. It was relevant as tending to show tho action of Theodule, tho owner, to his merchant during 1873, one of the years of the lease pretended to have been made to Marcel. “ The whole tendency of modern practice, is to enlarge the admissibility of evidence, leaving the court to restrict its applicability.” Kaiser vs. New Orleans, 17 An. 178.

We have now to collate the oral testimony. It will be abbreviated as much as consists with a proper presentation of its material features.

The record rooks with fraud and perjury. Two brothers combine to evade the payment of a debt acknowledged, or proved to be justly due. If the testimony of the one be true, that of the other is necessarily false. The forms of law are carefully observed, behind which they attempt to hide their guilty purpose. Solemn declarations in authentic acts, and judicial a hnissions upon the records of courts, throw a veil over the secret intention imbedded beneath this crust of formularies. The law rends this veil asunder with its rude and unsparing hand, and beneficently throws over society its protecting shield. Simulation is difficult to be proved. They who practice it conceal their deyiers under the guise of acts which bear the stamp of authentic ity, and have the outward appcanuiec of fair dealing. The sinuous paths which they tread require to be illumined by the light of truth, poured upon it with merciless brilliancy. The law wisely permits great latitude in tho application of .the process by which this truth is to be eliminated. Conscience can be. probed. The worst deformity thus exposed will revolt an individual observer, but society reaps the benefit of the detection in wrongdoing1, and the law vindicates its mission.

Theodule Duplantis swears that tho lease of his plantation to his brother Marc,el, in February, 1873, for three years1, was a “ mere arrangement for convenience,” and the three rent notes of two thousand dollars oaoh were returned by him to Marcel, he not receiving, or at any time expecting to receive, any money therefor; that he has lived on the place continuously since, 18(51 and lives there now, and has cultivated it all the while for his own account; that the supplies and advances for the plantation during 1873 were covered by a mortgage note of his delivered to Surle, who furnished them; that when Marcel became apprehensive that his own creditors would give them trouble, he sublet to the plaintiff for 1874, and gave as a reason for it that Letchford had obtained judgment against him and might interfere with witness in the management of his affairs; that witness assented to this arrangement because it was his interest that such transfer should be made if there was a probability of Marcel’s creditors interfering, provided the transfer was made on the same conditions as his lease to Marcel; i. e., -without consideration and for convenience only; that the plaintiff, Gaidry, knew all this; that Marcel feared Letcliford would seize the mules, and he therefore sold them to plaintiff, who paid Marcel four hundred and twenty-five dolíais cash, and then Marcel handed back the money to plaintiff in witness’s presence, the intention being to simulate a sale only; that during 1874 he cultivated the plantation for himself, and the plaintiff made him part of the advances and others a part — Labat to the amount of §784 75 and LeBlanc §169 — both of which sums were paid by witness with his own funds or produce; that he bought peas, corn, and fodder from nine persons whose names arc mentioned by him and paid them himself, and also paid six named laborers; that part of the land worked that year, leased to Marcel and sublet to plaintiff, was held by witness under a lease from Mrs. Forest, and witness paid her the rent; that he paid the cooper, bought carts for the place, and paid for one and is to pay for the other, killed his own beeves for the laborers, and in all respects acted as owner, both of land and crop, which wore his own; that he marked the sirgar and molasses seized with plaintiff’s initials, because he intended it should be shipped by him and the net proceeds applied to the payment of plaintiff’s account against him for supplies; that this produce was in witness’s possession at the time of seizure; other barrels and hogsheads were marked with names of other persons for whom those were intended in like manner as those marked for plaintiff; some of the Gaidry marks were effaced, and the barrels, etc., were re-marked in Daspit’s name and others, and these changes were reported to plaintiff and approved by him. He denies that he engaged to serve as overseer for plaintiff, and explicitly confesses that his disclaimer of ownership of the produce, made in the application to bond it, was false. His plantation is now under seizure by Lapene & Ferré to satisfy the mortgage of 1870.

Labat confirms the statement relative to the supplies furnished by him to Theodule Duplantis and the payment of the account by the latter, and LeBlanc does likewise. LeBlanc lives in the neighborhood, and had accounts against some of the laborers, which Theodule told him to transfer to his account, and he paid it; but this payment was made in part by drafts on plaintiff. Leeompte, Ozio, Hebert, and Forest all sold forage to Theodule that year and were paid by him.. The last mentioned knows that Theodule paid the rent money to Mrs. Forest, as narrated by him. Some of the laborers testify they were employed and paid by Theodule. In Juno, 1874, Smith was at the latter’s residence on the plantation and was shown by him an account of the plaintiff’s for supplies, and he complained of plaintiff’s exorbitant charges for oats, flour, etc., and declared he would not submit to such prices, and would cut grass and cure it and thus save expenses for forage, and other witnesses say that he did as he then declared he would do.

Marcel Duplantis swears, on the other hand, that his lease from his brother and his sublease to plaintiff were genuine, and that the price of the latter was paid to him by plaintiff; that the purpose of the parties was to deposit the three rent notes of two thousand dollars each with Surle as collaterals for advances, but that it was not done, and himself made the advances; that the expenses of 1873 were seventy-five hundred dollars, of which Surle furnished twenty-five hundred dollars, and witness used his own money for the residue, and that he received twenty-eight hundred dollars, of which plaintiff paid him eight hundred dollars, and the balance was the proceeds of the sale of mules and carts. “ Upon his soul and conscience,” he exclaims, he is sure the sugar and molasses ought to belong to Gaidry ” (plaintiff), and immedidiately adds, “ he may, perhaps, be deceived.” He swears that his brother Theodule engaged to serve as overseer to plaintiff as vehemently as the other swears to the contrary, and fixes the time of that engagement at May, 1874. He had transactions with plaintiff during that year amounting to $1300 or $1400, and on being asked why he did not pay this indebtedness in part with plaintiff’s rent note answers, “ e’etait mon affaire ” — he has always thought plaintiff an honorable man, and never warned his brother Theodule to be on his guard against him. Then, being shown a letter, says it was written by himself. This letter is addressed to his brother, and is dated the ninth of January, 1874, two weeks after his lease to Gaidry. After informing him that he had written him two letters since yesterday the letter proceeds : “ Yient, comme je te dis, soit'sure de touto arrangement, mais comme .je vois tous se trouver postiche suivant ce que j’aurais a to dire. Tu as le temps, je pense; vient, ot de la tu pouvais voir avec ce que je te dirais; ne te fie pas a Louis Surle, ni merne Adolphe dans rien. C’est pourquoi je tYcris ,ainsi. Je pense que cela sufiit pour que tu save ü quoi t’en teñir.

“ Tout a toi, M. DUPLANTIS.

“P. S. A. G. m’a dit, liior, qui fallait jeluitrouve l’argont.”

Then being questioned as to whom he referred by the initials A. G., he does not recollect. Questioned further as to whom he referred by the name Adolphe, he does not know. Then immediately after he says A. G. and Adolphe refer to the same person, but does not designate the person.

Clay Duplantis, a nephew and employee of the plaintiff, testifies to an arrangement between Theodule Duplantis and the plaintiff, by which the former was to become the overseer of the latter at one hundred and fifty dollars per month till October of 1874, but on plaintiff during the conversation objecting to the salary Theodule agreed to take his pay out of the profits after all expenses were paid.

Justin Daspit, a brother-in-law of plaintiff, gives much the same testimony.

Surle advancecl for tlie cultivation of the crop of 1873, to secure payment of which Thcodulo deposited with him mortgage notes for six thousand dollars as collateral.

Last wo will epitomize the testimony of Gaidry, the plaintiff. He was in possession of the plantation from the moment of Marcel’s lease to him, and made the crop of 1874; the advances to make the crop were made by him; Theodule was his manager; paid Marcel eight hundred dollars, the consideration of his lease, and two thousand dollars cash for mules and agricultural implements; don’t know how much his lessor was to pay for his lease from Theodule, nor how many hands worked on the place; didn’t know the crop was liable to seizure by Marcel’s lessor: sent all supplies and moneys from his store, twenty miles distant; there was no agreement with Theodule about salary, which was entirely left, to witness; Theodule came to him to be employed as overseer about. February, 1874.

Groping through this mass of contradictions and prevarications we find certain salient facts established. Theodule Duplantis was insolvent, at the time, of the lease, from him to his brother Marcel, and the subsequent sublease to their cousin, Adolphe Gaidry, and the seizure of the produce by Lapáne & Ferre. The mortgage of 1870 to these last is unpaid, and his plantation is now under seizure for its satisfaction. The judgment in his wife’s favor in May, 1874, could only have been rendered on proof of the derangement of his affairs. The suit of Lapene & Ferré in January, 1873, was for the recovery of another debt in addition to that secured by mortgage. Scarcely had the sheriff served the process in this suit upon Theodule Duplantis when he makes a lease for three years to Marcel, for which ho consideration was ever paid. This lease was a simulation, and was not intended by either of the parties to have a real existence, but was expressly designed to obstruct the creditors of the lessor in the prosecution of their claims. The customary suit of the wife followed in quick succession. Before the expiration of the first year Marcel needed the same protection from his own creditors, and his lease to the plaintiff had the same purpose as the other, and like it was a simulation. The continued possession of the debtor of the property, his management and control of it, his payment of many of the expenses incurred in its cultivation with his own funds, or the produce he raised, and the pledge of his mortgage notes as col-laterals to the merchant who supplied and advanced him for the crop of 1873, and his purchase of some of the supplies from the plaintiff for that of 1874, and his complaints of the prices charged are circumstances that show the character of the arrangement, and its purpose. Undoubtedly the plaintiff furnished a considerable part of the supplies. and advances for the crop of 1874. Were he before us prosecuting a. demand for their payment with a recorded privilege, he would doubtless have established his right to b judgment in his capacity of furnisher of supplies. He has chosen a different course. Relying upon a simulated lease, he claims the produce as owner, and imagined that authentic -acts, containing illegal and fraudulent combinations to defraud creditors, could not be torn to shreds by the sharp talons of the law, when it scents fraud and deceitful devices.

The judge who tried the case evinces in an elaborate and well-considered opinion his patient and careful examination of the whole evidence, and the law applicable to it. He has rightly interpreted the one, and has duly weighed the other. He had the witnesses before him, and saw the manner of giving their testimony. His judgment was that plaintiff’s injunction be dissolved with twenty per centum upon the amount enjoined, as general damages, and three hundred dollars attorney’s fee as special damages, decreeing the produce seized to be the property of Theodule Duplantis, the judgment debtor, and subject to the execution of Lapéne & Forró, the judgment creditor, and annulling the several leases, and declaring them to be simulations.

The judgment is just.

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

On Rehearing.

DeBlanc, <T.

Adolphe Gaidry prays for a rehearing of this case on the grounds:

First — That, as his title springs from a recorded lease, it can be assailed only by a direct action.

Second — The testimony of Surle and Daspit has a tendency to create a doubt as to the simulated character of the transaction between him and Duplantis, and that doubt should be construed in favor of honesty and fair dealing.

Third — That with no degree of certainty has any fraudulent intent been traced to him in the matter of that lease.

"We have carefully re-examined this case and our decree; wo have once more read and considered the evidence and the law, and our former opinion stands unremoved, unshaken. Of the grounds urged by plaintiff not one is supported by either evidence, law, equity, or the authorities on which he relies.

. The obvious distinction between a revocable and a simulated contract has been for upward of fifty years recognized in our jurisprudence, and applied by the -tribunals of the State. To revoke a real contract, how.ever illegal it may be, one must proceed by a direct action; and why ? Because such a contract does exist, and can not be treated and set aside as an absolute nullity. That which has but the empty form and not. the substance of a contract — that which never had any real and legal existence — is, and may be declared a nullity, either in a direct action or-otherwise. H. D., p. 1031, No. 1.

In this case, what is the salient fact ? Adolphe Gaidry willingly and knowingly became an accomplice — not in a mere act of preference in favor of a favorite creditor — but in a gross, unjustifiable, and ill-disguised fraud, in a bold and manifest simulation. The transparent veil thrown over it has been raised by their own hands, and we are told that in this instance, in this action, we are without authority to check its course, and to defeat its purpose.

Our mission is not to excuse or encourage fraud, but to eradicate and discourage it, and little do we care that the act which conceals it bears the signature of a public officer, and that it was recorded. We would be guilty of a strange breach of our trust if we did not dare look behind the signature and the certificate of an officer, to detect and strike-down a fraud and a simulation.

Gaidry now appeals to us to mitigate what he calls his loss, by reversing that part of the decree of the lower court awarding damages against him. This we are not inclined to do. As to him — to his claim, for advances — no fraud was necessary. He chose to coalesce with dishonest debtors, and to link his claim with dishonest pretensions, and he suffers, by his own fault — his indisputable complicity.

The rehearing is refused.


author: DeBlanc, J.

text:
    No. 5335.
    Union Wood Preserving Company vs. W. H. Bell.
    The Superior District Court has not jurisdiction of a case to -which a corporation is a party, except when the corporation has been organized under a special act of the Legislature.
    APPEAL from the Superior District Court, parish of Orleans. Haw-kilts, J.

      George W. Christy, for plaintiffs and appellees. Lacey & Butler, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

This suit was filed in the Superior District Court for the parish of Orleans on the fourteenth of January, 1874, by the Union Wood Preserving Company against William H. Bell, to recover the first, second, and third installments alleged to be due by him on seventy-five shares of the capital stock of said company.

The Union Wood Preserving Company wes dissolved after the institution of this suit, and the commissioners appointed to liquidate its affairs filled an appearance in said suit and adopted as theirs the prayer of the •original petition.

On the seventh of February, 1874, defendant answered to plaintiff’s •demand, and on the twenty-fourth of- April filed an exception in which he contends that “ the Superior District Court was without jurisdiction to.hear and determine said cause, for the reason that the Union Wood Preserving Company has not been established by act of the General Assembly of the State of Louisiana.”

The Superior District Court is in reality but the continuation under •another name of the Eighth District Court. Its jurisdiction before the repeal of its previous title was general as to certain cases, exclusive as to others. Under its new title its jurisdiction is limited and exclusive. 'It embraces, among other and specified cases, those “in which any corporation established by act of the General Assembly and domiciled in the parish of Orleans shall be a party.”

The seventh section of the act changing the title of said court directs that “ all suits and proceedings, and the records thereof, now depending In said Eighth District Court which are not by the provisions of this act transferred to the Superior District Court, are hereby transferred to the Fifth District Court for the parish of Orleans.”

The jurisdiction of said court is clearly defined; the cases which it can hear and determine are specially mentioned; and as to all others it is entirely divested of jurisdiction. It was so divested not merely by the repeal of the law under which it exercised a general jurisdiction, but by the provisions in the aforesaid act, which direct “ the transfer to the Fifth District Court of suits and proceedings then pending in the Eighth District Court and which no longer appertained to its exclusive jurisdiction after it was called the Superior District Court.”

The Union Wood Preserving Company was a corporation, but was it a corporation established by act of the General Assembly ? It was not so established, but formed by notarial act under the law providing for the organization of certain corporations in the State of Louisiana, and defendant’s exception must prevail.

There was no reason, it seems, to distinguish between a corporation formed by notarial act, and under the general law, and one established by a special act of the Legislature; but, howsoever unreasonable it may be, that distinction is made ; for the statute not only mentions the cases transferred to and to be filed in said court, but expressly transfers and excludes all others from its jurisdiction.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be and it is hereby annulled, avoided, and reversed, and plaintiff’s action dismissed as in case of nonsuit at his costs in both •courts.


author: Spencer, J.

text:
    No. 5018.
    J. B. Reihl vs. L. L. Martin, Administrator.
    In no caso can a widow, or the estate oí a wife, bo held for more than one-half of a community debt, and not even for that much unless the widow or her heirs have accepted the community.
    The written acknowledgment of a debt by an administrator will not bind the succession if such debt does not really exist.
    APPEAL from the Parish Court, parish of Lafourche. Knoblodh, J.
    Louts Guión, for plaintiff and appellee. E. W. Blake and L. S. Allain, for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff took a rule on defendant in the parish court of Lafourche, in which he alleges that on the seventh of December, 1872, he obtained in the district court of said parish a final judgment against said Martin personally for $1479 04.

“ That the said Louis Martin is the duly-qualified administrator of the succession of Scholastic Babin, his wife, whose succession was duly opened in said parish on or about the twenty-eighth of June, 1871, and as head of the community existing between him and his said wife he is responsible for the payment of the said claim, which is a claim existing against said community, and has been duly acknowledged by the said administrator as a just debt against the succession of his said wife; that said amount still remains unpaid, and that there is property of the succession which should be sold to pay the same. Wherefore petitioner prays that the said Louis Martin, administrator, be cited to answer this demand within ten days; that after due delay the property of said succession be sold to an amount sufficient to pay the sum due in principal, interest, and costs.”

On this application the judge ordered that the administrator pay the amount claimed within ten days or show cause why the.property of the succession should not be sold as prayed for.

A citation issued, directed to Louis Martin, and was, with a copy of the rule, served on him personally on the twenty-seventh of February, 1873.

On the seventh of July, 1873, the parish court met in regular session. On the same day, without default, the rule was fixed for trial, tried, and judgment final rendered in favor of plaintiff, ordering “ by reason 'of the law and evidence being in favor of plaintiff and against defendant in his capacity as administrator” that the property of the estate of Scholastic Babin be sold to satisfy and pay plaintiff’s demand in principal, interest, and costs.

If any evidence was introduced by plaintiff no note thereof was taken in writing, but there is found in the record a copy of the plaintiff’s, judgment against Louis Martin, upon which he bases the present suit.

On that judgment appears the following indorsement:

“The within judgment is hereby recognized as a debt against the-succession of Scholastic Babin, deceased wife of L. Martin.

“ Thibodaux, February 20, 1873.

“ (Signed) L. S. ALLAIN,

“ Attorney for L. Martin, Administrator.”

From the judgment decreeing the sale of the property of the estate of Babin the administrator prosecutes this appeal, and urges its reversal on the following grounds:

That the debt was one personal to Martin and nowise connected with the community; that the judgment against the wife’s estate was rendered without citation; that the debt was not actionable for want of previous presentation to the administrator. C. P. 984 That there is no proof that the administrator accepted said judgment as a debt against his wife’s estate; that there was no judgment by default taken against the administrator, and no evidence was offered to sustain the. judgment.

Under the view the court takes of this case, it is not necessary to pass upon these objections. Taking the plaintiff’s ease as stated by his petition or rule, and supposing him to have proved all he alleges, the judgment appealed from can not be sustained. He alleges that the debt evidenced by the judgment against the husband was a debt of the community existing between him and his deceased wife Scholastic Babin;, that the husband as administrator had recognized it as a debt of the-wife’s estate, and that the property of her succession should be sold to pay it.

We know no law that makes the wife’s estate liable for the whole of a community debt. She nor her estate is liable for any part of it, unless she or her heirs have accepted the community, and then only for one-half of it. Plaintiff does not allege or pretend that there has been siich acceptance, either by herself, her heirs, or even by her administrator, if her administrator had such power. He does not allege that the property sought to be sold is community. On the contrary, he alleges that it is the wife’s property and in the possession of her succession. Under these allegations and admissions the order of the court, directing the sale of the wife’s estate is clearly illegal, and the acknowledgment of the claim as a debt of her estate, whether made by the administrator himself or his attorney, is equally illegal. An administrator may acknowledge .the existence of a debt, but his acknowledgment can not create one. This view renders it unnecessary to pass upon the power of an attorney-at-law, simply as such, to acknowledge a debt, a power which, however, we clo not think flows from his capacity as attorney-at-law, acting- extra judicially.

In these views we put the plaintiff’s case in its strongest light by sup-posing him to have proved what he alleges. But the record does not show that he proved one single allegation of his petition. His counsel says the court must x>reswne that lie proved what he alleges, since the judgment recites that it was rendered “ by reason of the law and evidence.” It is a sufficient answer to this to say that in probate matters the law (C. P. 1042) requires the evidence to be reduced to writing: This court has repeatedly held that in probate matters the law imperatively requires that this note of evidence shall be made, and that its absence is of itself sufficient cause to remand this case. See 16 L. 200, Thompson vs. Benjamin, and same pages 202-3, Graham’s Heirs vs. Graham’s Administrator.

It is therefore ordered, adjudged, and decreed that the judgment ap-. pealed from be avoided and reversed, and that this ease be remanded to the lower court, to be proceeded with according to law, plaintiff and appellee paying the costs of appeal.