author: Todd, J. Bermudez, C. J.

text:
    No. 10,046.
    Amelia C. McKenzie, et al., vs. Gabriella Bacon, et als.
    An authentic act of sale is full proof against all parties thereto. In the absence of a charge of fraud or error, it cannot be contradicted by parol proof tending to show that the sale was not real, that the ostensible purchaser was but a person interposed, and that he had incurred no obligation to pay the price.
    Parol evidence cannot he received to create or destroy a title to immovable property, orto prove an agency to buy or soil such property.
    Where immovable property of an interdict (a lunatic) has been sold under regular proceedings, preceded by a valid order of a competent court, and the proces verdal shows an observance of the required formalities, and a valid adjudication for an adequate consideration^ parol evidence is inadmissible to prove that the proceedings and adjudication were not intended to convey the property to the adjudicatee, hut that he was merely interposed to hold the naked title, in order that he might convey it to another.
    A curator of an interdicted person cannot keep the funds of the interdict without accounting for the same to the probate court, under a claim that the interdict is indebted to him. He must aceountfor the money received, and the indebtedness of the interdict, if it exist, must he settled and adjudicated under the supervision of the court. Bor can such curator transfer his claim to another1 person-and authorize such person to colleot the money of the interdict and retain it in satisfaction of the debt- so transferred, without proi>er judicial sanction.
    The failure of the adjudicatee, at a judicial sale, to pay the price, gives the vendor the right to demand the revocation of the sale, though the property may have passed from the possession of the adjudicatee.
    Where a person dies leaving no descendants or ascendants, but a brother and children of a •pre-deceased brother, the latter are called to the succession of their uncle by representation, the children representing their pre-deceased father: but though thus representing their father, they do not derive their right to inherit from him, but from the law. Such light is not impaired or affected by any act of their father. Therefore, they are not estopped from prosecuting a right of action derived from the succession of their uncle, on account of acts or omissions of their father, although these acts or omissions might have estoppod him (the father) had he survived the intestate from maintaining the action. Reaffirming 4 B. S. 557; 23 Ann. 290; 33 Ann. 1001.
    A PPEAL from the First District Court for the Parish of Caddo. jTaylor, J. »

      Young & Thatoher, for Plaintiffs and Appellants:
    “ The right to rescind a sale for non-payment of the price is absolute on plaintiffs tendering the notes and amounts received, and his rights may he transferred to the heirs.” Castle vs. Floyd, 38 Ann. 583
    Registry is not necessary to preserve this right Johnson vs. Bloodworth, 12 Aim. 701. The right to dissolve the sale for non-payment of the price is independent of the mortgage. 28 Ann 598.
    An administrator cannot pay debts or legacies, even where there are sufficient funds, without being authorized by the judge to that effect. C. C. 1063.
    The fathers of minors cannot, in purchasing, retain the price, because entitled to receive the legacy for them and to enjoy the usufruct thereof during marriage.
    Bis debt to the estate is personal and his claim to the legacy in autre droit. Gorton vs. Gorton, 12 La. 466.

      The relation between factor and principal is nob that between debtor and creditor. It is a relation of trust and confidence and comi>ensation does not take place. O. C. C. 2207; Nolan vs. Sliaw, 6 Ann. 46.
    Accounts between principal and factor are necessarily provisional until settled, and even after settlement may be rectified by either party on account of error or omissious. Bloodworth vs. Jacobs, 2 Ann. 25.
    Every curator of vacant successions, as of absent heirs, is prohibited from purchasing by himself, or by moans of a third person, any property, movable or immovable, intrusted to his administration under pain of nullity. C. C. 3146; Michaud vs. Girod, 4 Howard, 503. A person interdicted is liketho minor. Ü. C. 415.
    Where the court has ordered the sale of property on terms of credit, and it was sold lor cash, the sale will be void for want of an order of salo. 15 Ann. 254.
    Minors and persons interdicted cannot be prescribed against except in cases provided by law. C. C. 3522.
    Judgments of courts charged with the administration of minors or interdicted persons— Probate Courts-cannot be contested in any other courts in collateral proceedings. 2 Ann. 642; 6 Wallaco, 703; 1 H. D. p. 763, No. 2.
    They are certainly conclusive unless .shown to be erroneous. 1 H. D. p. 588, No. 3.
    “ A trustee shall not be permitted to mix up his own affairs with those of the cestui que trust." Wormley vs. Wormley, 8 Wheaton, 463: ib. 444.
    A trustee is not an agent. Taylor vs. Davis, 110 TJ. S. 330, and authorities there cited.
    Those dealing with notice of facts are necessarily affected with notice of the law operating on those facts. Wormley vs. Wormley, 8 Wheaton, 445: Boone vs. Child, 10 Pet. 210-11-12: Vattin vs. Hinde. 7 Pet. 271-2.
    PliESCliJl’TJOX.
    Prescription of notes does not bar action to dissolve. 24 Ann. 537; 11 Ann. 655 ; 1 Ann, 442; 16 Ann. 129.
    Nor even omission to register, but in this case there was registry. 32 Ann. 461.
    Prescription of action to dissolve does not run against lunatics originally interdicted, when, as in this case, they bad no guardian or curator, indeed, the exception is not qualified. C. C. 3522, 3554; 2 Ann. 316, 320 ; 13 Ann. 340 ; 6 Ann. Ill; 1 Ann. 442; 16 Ann. 130 ; C. C. 415.

      Henry O. Miller and F. L. Fiehardson, and W. A. Gunter, on same side.

      Wise efi Herndon and Alexander & Blaneha/rd, for Defendants and Appellees:
    1. “ Neither tlie heirs of a deceased person, nor the transferee, can sue foAho resolution of a salo until previous tender has been made of the outstanding purchase notes, and such part of the purchase price as may have been paid by the purchaser.” 38 Ann. 583, and authorities therein cited. “A tender is acondition precedent sine qua non, to authorize a suit to rescind a judicial sale.” Parquhar vs. Hes. 39 Ann. not yet repotted.
    2. “ The real cause or consideration of a wiitten contract involving the transfer of immovable property may be shown by parol evidence.” 32 Ann. 432; 3 Ann. 230; 36 Ann. 565. “Parol evidence is admissible to prove what occurred at the time of a judicial sale, or subsequently, in relation to compliance with terms of the sale.” 1 II. 433. “So, too, that the price of real estate sold at auction was paid to a mortgagee, and the mode of such payment.” 11 P. 270.
    3. This is an action to rescind a sale for nonpayment of the price. The proof shows that every dollar of the purchase price was paid, not directly by the nominal purchaser, Donaldson, but by White for him. It can make no difference, in fact or in law, to the interdict or Ms lieirs, whether the payment ot the price was made directly hy Donaldson or mediately through White.
    4. The heirs of Dr. M. L. Gilmer, guardian, are hound hy his acts, whether of fraud, negligence or omission, and having by the averments of their petition accepted Ms . succession, are estopped from contesting the title of defendants. 14 Ann. 642; 15 Ann. 140. Brands M. Gilmer, another plaintiff, the proof shows, and he himself admits, had full knowledge of aud advised the making of the sale to White in the manner in which it was done, and also discounted one of the notes given by White as part of the purchase price. He is clearly estopped from taking advantage of any defects or irregularities in the matter.
    5. This suit was not brought until thirteen years after the sale was made; after the property had passed into the hands of third parties, innocent purchasers, and after the death of almost all of the parties conneoted with the salo. It is a stale demand, one upon which the courts look with extreme disfavor, aud in order to establish which it is not enough for the plaintiffs to render probable, but they must make eortain 7 Ann. 555, 559; 14 Ann. 317: 35 Ann. 1005; 37 Ann. 95.
    Plea of Want of Tender.
    Neither the heirs of a deceased person nor the transferee can sue for the resolution of a sale until previous tender has been made of the outstanding purchase notes, and such part of the purchase piice as may have been paid by the purchaser.” 38 Ann. 583, and authorities cited.
    ‘ • A real tender is a condition precedent sine qua non, to authorize a sitit to rescind a judicial sale. Article 417, O. I ., touching tenders made at any stage, refers to such as are made by a defendant. When it is alleged, denied and not proved by plaintiff, the action must be’dismissed.” Barquhar vs. H.'S. lies, et-al, 39 Ann. (decided at Opelousas, not yet reported). s

    The plea is good, but defendants, who now own the property, are anxious to have the cloud on their title removed, and lienee do not urge its consideration upon the court. ¿
   Tile opinion of the Court was delivered hy

Todd, J.

This is a suit by the heirs of Nicholas M. Gilmer to rescind the judicial sale of a plantation situated in the parish of Caddo, and known as the *• Nick Gilmer Plantation, ” for the non-payment of tlie price.

The suit is against the heirs of Prassley W. Donaldson, the adjudicatee as purchaser at said sale, and those holding under him by mesne conveyances.

The plantation named belonged to Nicholas M. Gilmer, a resident of Alabama, aud at the time of the sale, and long prior thereto, an interdicted lunatic, under the guardianship of Merriweather L. Gilmer, a resident also of Alabama.

The order for the sale of the property was made hy the parish judge of Caddo parish, on the 19th of April, 1871, by the recommendation of a family meeting previously convoked for the purpose of advising in regard to said sale ; and after the regular delays and advertisements, the sale was made at public auction on the 23d of May, 1871, and the property was adjudicated to P. W. Donaldson for $32,000, $5000 cash, and the balance on a credit payable in equal installments of one and two years, and secured by special mortgage; and on the 14th of June following a formal conveyance was passed before a notary conforming to the terms of the adjudication. This conveyance was duly recorded, and the inscription of the mortgage and vendor’s privilege remained until the 8th of February, 1878, when it was canceled, by what authority it does not appear.

Nott & Leonard, attorneys for the guardian, received from the auctioneer the cash paid at the sale, and the notes of Donaldson for the credit part of the price and sent the same to the curator as guardian of the interdicted Donaldson himself, and took his (Donaldson’s) receipt for the same.

M. L. Gilmer, the guardian, died in 1873, and the interdict in 1883, and in 1884 this suit was filed.

In December, 1871, Donaldson sold the property to Reuben White for $32,000, $20,000 paid in cash and the balance on a credit of one and two years.

Donaldson never paid over to Gilmer, guardian of the iuterdict, the cash put in of the price of adjudication, and never paid or even delivered to him the notes he had executed for the credit portion of the price.

The notes were found after the death of Donaldson among his effects, with his name torn off and uuindorsed by him.

The defense to the action presented in the answers is substantially as follows :

It is charged that the sale to Donaldson was not a real sale, that he was but a person interposed for the purpose of making, subsequently, to White, a conveyance of the property under a private agreement previously had with the guardian of the interdict. That White and another person were to buy the property jointly at the public sale, but that this other having failed to meet the engagement with White, it was agreed that Donaldson should have the property adjudicated to him at the judicial sale, and make the conveyance to White after-wards ; and in the meanwhile Donaldson was to hold the naked title in his name until such time as White was ready or prepared to comply with the terms of the sale. It is urged that White was the real purchaser of the property, and that he paid to Donaldson, alleged to be the agent of the curator or guardian of the interdict, the entire price for the propelty, and that, the price being thus paid, an action of remission for its non-payment must fail.

There were filed also pleas of estoppel, want of tender and prescription.

The plaintiffs are appellants from a judgment rejecting their demand.

The first legal question we are confronted with is a question of the admissibility of evidence. On the trial below, the court admitted against the objection of the plaintiffs, parol testimony in support of the defenses set up in the answer, as above-detailed, to-wit:

That the judicial sale to Donaldson was not real; that Donaldson was a mere party interposed, and that White was the real purchaser; also, of the private agreement under which the arrangement touching the judicial sale to Donaldson and the conveyance from him to White was to be consummated or carried out.

The objections, substantially, to this evidence, as shown in the bill of exceptions, were:

That the testimony was an attempt—

1st. To destroy title to real estate under a judicial sale by parol.

2d. To establish title in some other person than shown by the adjudication and notarial act, by the same character of evidence.

3d. That it was an attempt to prove by parol an agency to buy and sell real estate.

4th. To prove by parol, agreements relating to real estate antecedent and- subsequent to the execution of the authentic act of sale from the estate of the interdict to Donaldson.

5th. That it was. an attempt to prove by parol, matters and things beyond what was contained in the authentic act.

As stated, these objections were all overruled and the testimony admitted.

An examination of the record shows conclusively that all*the proceedings relating to this sale were legal and regular — including the recommendation of the family meeting advising the sale, and fixing the terms thereof — the homologation of the proceedings and the order of sale, the adjudication, and everything else relating to the confection or completion of the sale. The record in these respects is perfect and complete.

There is no pretense or allegation of fraud or error connected with these proceedings, but the proposition in substance is, in the absence of all cause of nullity in the proceedings, to destroy this complete and perfect record and establish another sale by parol. That is, to show that there was no judicial sale; that Donaldson, the declared adjudicatee, did not in fact purchase, but that he was merely interposed for some one else; that he did not pay the cash which theproces verbal declares he did pay, and never obligated himself to pay the credit portion of the price, but that the notes given by him were but a pretense and empty formality. '

We cannot escape the conclusion that- the attempt to contradict these essential, vital and solemn declarations of the vroees verbal of the adjudication and the stipulations of the notarial act confirming the same, was in direct contravention of the rule laid down in Article 2276 C. C., as follows:

“Neither shall parol evidence be admitted against or beyond what is contained in the act, or what may have been said before or at the time of making them, or since.”

And also of the provisions of Article 2236 of the Code, which reads:

“ The authentic act is full proof of the agreement contained in it against the contracting parties, and their heirs or assigns.”

Further, it is expressly provided that a power of attorney conferring authority to contract with reference to real estate must be in writing. C. C. 2992; Moggatt vs. Greig, 2 L. 596; Baden vs. Baden, 4 L. 167.

This last reference applies to the proposition to prove by parol that Donaldson was authorized by the guardian of the interdict to make the arrangements and agreement respecting the disposition of the land, including the sale to White mentioned in the foregoing statement of facts.

The articles which control our conclusions on this point seem so clear as to require no reference to adjudications to strengthen them, if confirmation is sought; but out of a multitude of decisions we refer to a number which bear a strong analogy to the instant case: Baden vs. Baden, L. 167; Liantano vs. Baptiste, 3R. 432; Fuselier vs. Fuselier, 5 Ann. 132; Barbin vs. Gaspard, 15 Ann. 539; Smith vs. Lambert, Ib. 566; D’Aquin vs. Barbour, 4 Ann. 441; Kunmensengeiser vs. Juncker, 28 Ann. 678; Hackenberg vs. Gastzkamp, 30 Ann. 898.

It has been expressly held that “where real property is adjudicated at public sale to one, to whom the title is made, his agency in the purchase for the benefit of his co-heirs cannot be proved by parol.” 5 Ann. 132; 12 Ann. 213; Ib. 878.

To make correctness of our views even plainer, if possible: Suppose, for instance, that after this judicial sale to Donaldson, the interdict had recovered his reason, and ignoring the sale made during his interdiction had sought to recover the property.

The proceeding relating to said sale being, as before stated, entirely legal and regular, of course he would he bound by the sale and es-topped thereby from a recovery.

Suppose, on the other hand, that he should have brought suit against White for the price of the property, in the averments that he, Gilmers, was the real vendor of the property and that White was the purchaser from him and not from Donaldson — the latter being a mere person interposed, and that White and not Donaldson was his debtor — it is evident that,, in the absence of fraud or error charged, and with no transfer to himself of the evidences of the debt, White, upon objecting to the competency of parol evidence to prove these averments, could have defeated his recovery.

Rejecting the parol evidence to contradict the record as to this sale to Donaldson, and guided alone by this record, the oase stands thus:

We find a perfect sale of the property from the estate of the interdict to Donaldson by judicial process.

Further, that about six months after the purchase by Donaldson, a sale by him of the same property to White.

And, as a further tact having an important bearing on the controversy. that the mortgage retained to secure the price from Donaldson was duly recorded and was of record when White bought and when those holding under him acquired the property.

This is all that the record discloses — at least by written evidence.

Finally, it is also shown by competent evidence that Donaldson never paid to the interdict, or his guardian, the notes given by him for the price of the property.

White, however, paid Donaldson in full the price for which he purchased the property from him. but no part of the sums he thus received from White did Donaldson pay over, at least in money, to the interdict or his guardian. It is, however, urged and attempted to be shown, that the price paid by White to Donaldson for the plantation was virtually paid to the interdict, oí' enured to his benefit in this way.

It was averred that the interdict was indebted to his guardian and was proved on the trial that the guardian transferred this claim against the interdict to Donaldson, and that he (Donaldson) applied the money received from White for the property to the extinguishment of this indebtedness of the interdict to Gilmer, guardian, or himself (Donaldson) as transferee.

We cannot concede that M. L. Gilmer, guardian, could himself receive the price of land coming to his ward and dispose of it by applying it to the extinguishment of his debt against his ward extrarjudicially; but it seems to us that when the money was thus received, it was a matter for settlement before the probate court of Alabama. The funds of the interdict, when they came into the hands of his guardian, were essentially trust funds, and were to be accounted for to the court, and settled and adjusted by proper proceedings before the court; and the guardian, if he could transfer his claim against the interdict to another person, and could authorize such person to receive or collect funds belonging to the interdict, could only do so under the restrictions and conditions to which he himself was legally subject.

Be this, however, as it may, the record does not satisfy us that the interdict was indebted to his guardian. It is true that from the proceedings before the probate court of Alabama, in the matter of this interdiction and guardianship, it does appear that a provisional account was filed and homologated, by which a balance appears against the interdict, in favor of the guardian, of $38,409 85. This was of date June 25, 1866.

It further appears, however, that after the death of Gilmer, guardian, proceedings for an accounting were taken against his legal representatives by the heirs of the interdict. An account was filed, and judgment rendered against the guardian’s estate for $27,509. This judgment was rendered on the 80th of May, 1887, and is a final judgment, conclusive of all matters pertaining to the guardianship.

This judgment is bitterly assailed. It is charged with having been procured by consent or connivance. The record shows that it was regularly rendered and properly certified, and that it was not appealed from nor annulled. We do not feel authorized, therefore, to disregard it, but on the contrary are bound to give it effect.

This ground of resistance to the plaintiff’s action must, therefore, fall; and it is the very foundation of the defense.

There was a plea of want of tender; but the counsel of defendants in their brief expressly decline to urge it.

There is likewise a plea of estoppel.

The defendants charge that M. L. Gilmer, guardian of the interdict, consented to the agreement or understanding by which Donaldson was interposed as the nominal purchaser at the judicial sale, and to the subsequent sale of the properry by him to White; and that his children, who are among the plaintiffs in this suit, are bound by his acts and are estopped from objecting to or attacking the proceeding covered by this agreement.

It is unnecessary for us to determine whether in fact M. L. Gilmer, the guardian, consented to said agreement, or was guilty or not of any unauthorized or illegal act of commission or omission respecting said proceeding.

It is shown that said Gilmer, guardian, died before the interdict, and his children inherited the property in controversy, or their rights thereto, not from him, but from the interdict direcily. The interdict was living at the time of M. L. Gilmer’s death, and therefore Gilmer was not his heir and could have had no interest in his estate. Nemo est hceres viventis

■It is true that his children inherited from the interdict by what the law terms representation, but none the less did they inherit directly from him and in their own right. They were bound by no acts of their father, whom' they represented, nor by obligations of his (if any) resulting from said acts as guardian or otherwise.

In the language of the Code: Representation is a fiction of the law, the effect of which is to put the representative in the place, degree and rights of the person represented.” C. C. 894.

Mourlon, after quoting the corresponding article of the Code Napoleon, proceeds to comment as follows:

“ 11 n’est pas exact de dire que le représentant entre dans les droits du representé. On ne représente, en effet, que ceux qui sont morts avant le de eujus; or, aux termes de l’art. 725, lespersonnes qui avaient cessé d’exister au décés du de eujus n’ont aucun droit á sa succession; en eessant de vivre, elles ont cessé d’étre capable. Le representó n’a done eu aucun droit, a la succession du de eryits.”

And again:

“Au reste il n’est pas nécessaire d’étre héritier d’une ptrsonne pour la représenter, il sufíit d’étre son descendant. Mon pére meurt et je renonce a sa succession; je le reprósenterai néamoins dans la succession de mon aieul paternel, lorsqu’ elle sera ouverte. Cela se conpoit, le droit de representation ne faisait point partie de la succession de mon pére; ce n’est pas de lui que je le tiens, je le tiens de la loi. C’est un droit qui est nó dans ina personne; des lors peu importe que je sois ou non 1’ héritier de mon pére. Je suis toujours son descendant, et c’est en cette qualité que j’ai le droit de le représenter. De la la régle qu’on peut représenter celui & la succession dequel en a renoncé.' Mourlon, Examen du Code, 2 vol, p. 41, et seq.

Toullier on the same subject says:

“Il faut done poser en principe que les enfans qui succédent avec des parens plus proches du défunt, comme áurait fait leur pére, ue tieuneut point ce droit de celuici, et ne represented point sa personne, C’est un droit qui leur est propre et qu’ils ne tiennent que de la loi.” * * * Barthole avait dit: “ Quod filius suceedat in loetim patria seu matris, quantium ad sueeessionem ami, non habet a patre, sed ex dispositions leg is?' Toullier, vol. 2, p. 111.

These views are supported by many other eminent French jurists. Paillet, leg and juris, des Sue. 2, 600 Manuel de droit Franpais, art. 744, note Laurent, 2 vol. p. 138, No. 175; on art. 848 (Court elem dé dr. Civ.)

The same principle is substantially embodied in our own Code Thus art. 900 C. C. reads :

One who has renounced the succession of another may still enjoy the right of representation with respect to that other.”

And this principle has been substantially recognized by the decisions of this Court. Destrahan case 4, N. S. 557; Suc. of Misses Morgan, 23 Ann. 290; Calhoun vs. Cosgrove, 33 Ann. 1001.

There is, therefore, no force in the plea of estoppel as respect the descendants of M. L. Gilmer.

The principle that excludes them from the operation of such plea does not, however, exist in favor of Francis M. Gilmer, another of the plaintiffs. He was a brother of the interdict, inheriting immediately from him; and there is no question of representation to him involved.

It is shown beyond a doubt that he was for many years the adviser of M. L. Gilmer, guardian. He also was fully cognizant of the entire proceeding relating to the judicial sale and subsequent disposition of the property. He agreed to the arrangement and consulted with Donaldson, who. was his son-in-law, the agent of M. L. Gilmer, and the adjudicates of the property, and with the attorneys employed to effect the sale. He was fully committed to the plan of operations adopted with respect to the alienation of the property. Moreover, after the sale was made by Donaldson to White, he ratified it so far as relates to himself, by discounting one of the notes executed by White for part of the price, and received the payment of it. How could he consistently receive part of the price of this sale to White, knowing as he did all the facts relating to it and that led to it, and afterwards seek to recover the land itself? It does not lie in his mouth now to say that this sale to White was illegal and void, and that the sale should be rescinded for non-payment of the price when he had received a part of the price himself.

He is estopped under the equitable principles of the law from doing so.

'The plea of prescription..is not urged or discussed before this Court, and it might be considered as abandoned.

But however that may be, prescription was suspended as to the interdict during his life, and this action was instituted by his heirs in a year after his death, and the plea is therefore without force.

This completes the review of the facts relating to this case, and of the legal questions and issues pertaining to the controversy, and from the conclusions announced, it is manifest the Court a qua was in error in dismissing the action.

There were questions raised by the pleadings touching the rents and revenues of the property, and the value of the improvements and reimbursement therefor.

From the disposition of the case by the lower court, of course these questions were not considered. They will be left for future determination, and this will necessitate the remanding of the case.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is further ordered, adjudged and decreed that the suit so far as relates to Francis M. Gilmer, one of the plaintiffs, be dismissed and his demand rejected; and it is further ordered, adjudged and decreed that there be judgment in favor of the other plaintiffs in the suit, and that the judicial sale of the property described in the pleadings and attacked in this suit be rescinded and annulled to the extent of four-fifths interest therein, and that the said undivided interests of said land be restored to the plaintiffs (excluding said Francis M. Gilmer), to be held and owned by them according to and in proportion to their respective heritable rights therein. It is further ordered, adjudged and decreed that the case be remanded to the lower court for the sole purpose of determining the respective demands of the parties touching the rents and revenues of the property and the reimbursement for improvements made thereon since the sale aforesaid now rescinded.

The costs of both courts to be paid by the defendants.

Poché, J., being absent when this cace was tried, takes no part in the decision. -

Justice Watkins recuses himself, having been of counsel.

On Application por a Rehearing.

Bermudez, C. J.

The Court did not decree the return af the five thousand dollars paid at the judicial sale, for the reason that it considered that a decision on that subject had been waived- and that one was desired on the merits of the case.

As complaint is now made on the subject and adverse parties have, in an answer to the petition for a rehearing, consented to relief being allowed, the matter can be easily settled, without granting a rehearing.

It is therefore ordered that the previous decree herein rendered be amended so as to allow defendants credit in the adjustment accounts for four-fifths, to-wit: Four thousand dollars ($4000) of the amount, with legal interest from the acquisition of the property from the present owners thereof, the said sum to be credited on the rents and revenues of the property for which defendants are liable under the decree, and that thus amended, said decree remains undisturbed.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,086.
    The State of Louisiana vs. Henry Williams.
    While, asa general rule, uucommunicated threats are not admissible, yet where communicated threats, followed by subsequent attac k and difficulty leading to a killing have been proved, evidence of other threats made between the communicated ones and the assault may be received as corroborating the evidence as to the communicated threats, as indicating their meaning and seriousness, as characterizing the purpose of the assault, as throwing light upon the acts of deceased in connection therewith and as establishing the reality of the danger under apprehension of which defendant may have acted.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      M. J. Ounninghmn, Attorney General, for the State, Appellee.

      Tobias 'Gibson and W. F. Winchester for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The sole question in this ease is presented on the following bill of exceptions:

“ Be it remembered that on the trial of this case, the State having shown by Gus Ridley, the first witness for the prosecution, a difficulty between the accused and the deceased, and that the deceased called the accused -a broken jaw son-of-a-bitoh; and also having shown, by George Champagne, another State witness, that the deceased said, ‘ I will kill yon to-night, or you will kill me,’ and that the deceased then left the bar-room, where the difficulty took place.
Whereupon the defense placed Louis Johnson on the stand, who testified that he was on the gallery of the barber shop about (40) forty feet from the bar-room when the difficulty took place, and the deceased in passing near him said. ‘ the damned broken jaw son-of-a-bitch hit me, and I am going to get even with him if I have to eat my supper in helland the deceased returned to the bar-room in about a half hour, with a stick in one hand and something shmey in the other, like a knife or dirk, when his. fatal wound was received; to which evidence of threats objection was made by the district attorney as not communicated to the deceased, and was sustained by the court, when in truth and in fact the said evidence was offered) as specially stated, for the purpose of showing that the presumption was that the deceased himself was the aggressor, and to show what was his intent in retnrning to the place of fatal encounter; for it has been held that threats made by the decased against the defendant, shortly before the killing, the deceased being at the time of the killing armed to carry out such threats, are admissible as parts of the res gestae, and are verbal acts indicative of a present purpose and intention, and why he sought the accused, and lastly because it corroborates the evidence of threats, which had already been shown by the State witnesses, which evidence the Court refused to let the jury have, and this bill reserved to said ruling, and shown to the district attorney for his approval, and found correct, before tendering to his honor the judge for his signature, and to be placed of record in this ease.”

The judge a quo prefaces his signature by a statement which does not dispute any of the tacts stated in the bill, but gives an account of the encounter from which it appears that when the deceased returned to the bar-room, after the first difficulty, he had a walking stick and struck the prisoner. The prisoner again pushed or knocked the deceased down and went into the front part of the saloon. He after-wards deliberately returned with a pistol in his hand. The deceased When he saw the prisoner coming, ran, and just as he reached the back door of the saloon the prisoner shot him in the back and killed him.

We see no relevancy in this statement to the question of the admissibility of the evidence offered, whatever might be its effect.

We are presented with a case where threats had been made which had been communicated to the prisoner, and which were followed by an actual return of deceased in search of the prisoner, aud by a hostile demonstration in the shape of assault and battery ; and the question is whether, in a such a case, other deadly threats made by deceased to others in the brief interval of half an hour between the first difficulty and communicated threats and the return of deceased and his hostile assault on the prisoner are admissible, although not communicated.

We have frequently affirmed the general rule that uncommunicated • threats are not admissible, but all rules have exceptions, and we think reason and authority concur in establishing their admissibility under the circumstances indicated as corroborating the evidence as to the communicated threats, as indicating their meaning and seriousness, as establishing the purpose with which the deceased provoked the rencontre and throwing light upon his acts in connection therewith, and as confirming the reality of the danger under the apprehension of which defendant may have acted. The authorities to this effect are numerous. 2 Wharton, C. L. § 1027; Stokes vs. People, 53 N. Y. 164; State vs. Elkins, 63 Mo. 159; Cornelius vs. Com., 15 B. Mon. 539; Holler vs. State, 37 Ind. 57; State vs. Abbott, 8 W. Va. 741; State vs. Goodrich, 19 Vt. 116; Keener vs. State, 18 Ga. 194; State vs. Turpin, 77 N. C. 473; Campbell vs. People, 16 Ill. 17; State vs. Dodson, 4 Oregon 64.

We think there was error in the rejection of the testimony, and while its admission may not support the prisoner’s defense, we think he was entitled to its benefit before the jury.

It is, therefore, ordered and decreed that the verdict and sentence be annulled and set aside, and that the case be remanded for further proceedings according to law.


author: Watkins, J.

text:
    No. 10,087.
    The State of Louisiana vs. Monroe Holmes.
    The competency of objected testimony cannot be determined, if the complaint is first-made when the statement of witness is reiterated. Having been once received without objection, it cannot be thereafter recalled.
    An information charging a statutory offense is sufficient, if in the terms of the statute. “
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      M. J. Cunningham Attorney General, and W. K. Wilson, District Attorney, for the State, Appellee.

      Gluts. Be'lden, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant was convicted of the crime of inflicting a wound less than mayhem with a dangerous weapon, and sentenced to two years imprisonment in the penitentiary.

He seeks relief in this court on two grounds, viz:

1. That the trial judge erroneously permitted • the State’s witness, Clay Duplantis, to give in evidence a statement made by the prosecutor, Aureliau Toups, several hours after the wound was inflicted ou him, the same being objected to as hearsay, and not admissible as pari of the res gestee.

2. That the indictment was, and is, fatally defective in, not containing the essential averment that the defendant inflicted the wound wilfully and maliciously, and with criminal intent, and his motion in arrest of judgment was improperly denied.

I.

The judge assigns his reasons for permitting this witness’ testimony to go to the jury, and in connection therewith he makes the subjoined extracts from the evidence in the case, viz:

“The witness Duplantis testified without objection'that he found the prosecuting witness lying in an insensible condition in the field of O. Daspit, on the side of a cut of cane, and near a water drain where he had been working alone. He examined him, found him covered with blood, caused by ghastly wounds on his head and face. He attended him, and succeeded in arousing him1 to consciousness. The witness then asked him who had wounded him. He answered, 1 the water-boy. He did it with an ax.’ (The prisoner was the water-boy at that time on the Daspit place). This evidence was not objected to by the prisoner. On the contrary, his counsel cross-examined the witness at length on the fact. On being re-called, on re-examination, the district attorney asked the witness to state ‘ what else the prosecutor said then about the person who wounded him.’ The witness said again : 1 He said the water-boy struck him with an ax, nothing more.” The attorney for the prisoner then objected to the evidence on the ground that it was irrelevant and hearsay. The previous facts shown were: The prosecutor is a very old man and a cripple. He was working in a lonely portion of the plantation when attacked. There were no ej e-witnesses to the crime. He was found by the overseer a short distance from where he had been struck down by his assailant, unconscious.
“ When aroused to consciousness the first words he spoke were the words given above.
The prosecutor was put upon the stand, but his mind was so affected from the injury received that he could not give an intelligent account of the assault made on him.
“ The court overruled the objection, because it came too late, after the evidence had already gone before the jury without objection, and because the previous facts show that this was a secret attempt at murder, and the time, place and manner in which the declaration was made, convinced the court that the jury should have it and consider it with the other testimony in the case.”

The defendant’s objection to tbis evidence cannot be considered, nor its competency determined, for the reason that his complaint is leveled at the witness’ reiteration of a statement previously made in the presence of the jury, and, should we decide that the objection to it was well taken, we could not recall the statement first made.

It had been received without objection. His complaint was not seasonably made.

II.

Section 794 of the Revised Statutes declares that “ whoever shall, with a dangerous weapon or with intent to kill, inflict a wound less than mayhem upon another person, shall,” etc., and the information charges that the accused “ did, with a dangerous weapon, feloniously iDflict a wound less than mayhem upon one Aurelian Toups,” etc.

It is an elementary principle in our criminal jurisprudence that an information charging a statutory crime is good if the language of the statute has been followed.

In this case the district attorney added the word feloniously, “oat of the abundance of caution.”

The words “wilfully,” and “maliciously” were unnecessary, and “criminal intent” may well he inferred from the employment of the term “feloniously.”

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,056.
    The State of Louisiana vs. Charles Berard.
    The -words of a- law are generally to be understood in their most usual signification.
    When, in Act No. 100 of 1878, prohibiting the keeping of private markets within a radius of six squw'es of a public market, in New Orleans, the Legislature used that language, they had in view to fix an equal and uniform distance in order to avoid any arbitrary discrimination, and intended that the distance should embrace, both, the length of the squares and the width of the streets; in other words, 2100 and not 1800 feet, American measure, as contended by the defence.
    The 3100 feet are to be computed from any point on the public market limits nearer the private market.

      APPEAL from the Court of the Second Recorder, City of New Orleans. Burthe, J.

      Blanc & Butler and B. J. Wench for Plaintiff and Appellee.

      Theophile Buisson for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a recorder’s sentence condemning him to pay a fine for a violation of Act No. 100 of 1878, which prohibits private markets within a “radius of six squares” from a public market in New Orleans.

He charges the unconstitutionality of the law under which the fine was imposed, in this : that it suppresses a lawful business without justification, and that the fine imposed is illegal.

Under Article 81 of the Constitution, the case is before us on the law and on the facts.

On the question of constitutionality raised, it suffices to say that the law attacked has been several times judicially announced to be one adopted by the State, in the exercise of her police powers, to which there exists do constitutional objection.

The State contends, on the merits, that when the Legislature used the words, radius of six squares, the object in view was to fix and establish an equal and uniform distance, according to the known, popular and accepted English or American measurement, and that, tested by this standard, the distance would be composed of six squares each of three hundred American feet and of six streets of fifty American feet, the former to sum up 1800 and the latter 3Ó0, footing 2100 feet, Ameri • can measure.

On the other hand, the defendant insists that the distance does not include the streets, but merely the squares, which measure together only 1800 feet, and that his place being beyond that space, though within 2100 feet from the public market", he is not in Contravention.

The inquiry is therefore narrowed down as to whether the width of the streets is or not to be included in the distance which the Legislature fixed when it said that piivate markets shall not be kept within a radius of six squares of a public market, in this city.

It is clear that thei’e can be no squares in a city unless they are divided by streets, and that the pieces of ground which are termed and designated as squares, 'in ordinary parlance, when a distance is to be stated, include the streets.

The text of the Code says, that terms of art or technical terms and phrases are to be interpreted according to their received meaning and acceptation with the learned in the art to which they refer, and it adds that the words of a law are generally to be understood in their most usual signification. R. C. C. 15 and 14.

Judging from the object and tenor of the act, it is obvious that the word radius was designedly used to have its technical meaning, i. e., to signify the length of the distance within which the prohibition was to be enforced.

A radius is a straight line drawn from the centre of a circle to any poiut of the circumference. Its length is half the diameter of that circle, or is the space between the centre and the circumference.

The centre for measurement from which the radius would shoot was not required to be located in the middle of the space occupied by a public market, which is usually not a square, but some other geometrical figure, a parallelogram, or a triangle, for the space between the centre and the external boundaries would have to be included in the length of the distance, and this would shorten that length.

The legislative object was to prohibit the keeping of public markets within a radius of six squares from a public market, the distance to be computed from the nearest point on the external line of the space occupied by the public market to the circumference, drawn from that centre, so that no private market be allowed within that circumference.

It is further apparent that when the Legislature used the language stated, it meant what was generally understood by the word square.

It required no evidence to show what that meaning is in this country.' The Court can safely take judicial notice of it.

Should any one be asked to say how many squares Canal street is distant from Esplanade street, the answer would briefly be, so many; say; thirteen, and nothing more. No one would dream answering, thirteen, the width of the streets excluded; although possibly the squares do not measure equally.

It is evident, and in fact conceded, that the Legislature intended to fix an equal and uniform distance, so that A’s private market might not be nearer the public market than B’s, simply because, in the distance in A’s case there would be found one or two short squares, and that in the distance in B’s case there would, exist regular or longer squares.

The only distance which the Legislature could have intended was that of six squares, including the width of the streets; in other words, twenty-one hundred (2100) feet for both squares and streets, and not eighteen hundred (1600), as urged by the defendant.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,029.
    The State of Louisiana vs. A. A. Woods et als.
    A clear distinction exists in law as well as in fact, and must be observed by courts, between the business of an insurance agent and that of a person, firm or corporation conducting or doing an insurance business.

    In the contracts of insurance negotiated by insurance agents the latter act only in a representative capacity, as intermediaries between the insured and the companies which they represent; in such contracts they do nob own the premiums which they receive; they are not the insurers, hence never personally liable for losses.
    Therefor» they are not personally liable for licenses exacted by law of persons, firms or corporations who do and conduct an insurance business in this State.
    .A suit to enforce such alicense against the agents personally cannot be maintained.
    A PPEAL from the Civil District Court for the Parish of Orleans. i_jL Bightor, J.

      John MeBnery and W- JB. Sommerville, for Plaintiff and Appellee.

      Harry H. Hall, G. A. Breaux and F. O. Zaeharie for Defendants and Appellants:
    I.
    “ Conducting an insurance business " is totally different from “ conducting the business of insurance agency.” Under the law imposing a license upon the former, recovery cannot be had against the latter. 31 Ann 781; 33 Ann. 10. -
    II.
    A lioense imposed under the taxing power for revenue is a tax, as distinguished from a a license imposed under the police power. Desty, Taxation, pp. 191, 305; Cooley, Tax' ation, 186-592; Cooley’s Constitutional Limitation, p. 616 ; 36 Ann. 363 ; 38 Ann. 711.;
    III.
    Such a license tax must be “equal and uniform” upon all who engage in the same trade and calling. 23 Ann 663, 449; 26 Aim. 140; 28 Ann. 102; 36 Ann. 95.
    IV;
    The Legislature may classify trades and callings, hut that classification must be of different callings and not of different degrees in the same calling. Cooley, Taxation, p. 186.
    V.
    Graduate means'‘proportion,” to mark with degree of equal part, and a law which imposes upon she insurance oompauy doing a business of $300,000, a license tax of $1750, for say £ of 1 per cent., and upon another company doing the same kind of business of $100,000, in the same place, a license tax of $300, or 3 per cent does not graduate the tax. V. 36, Ann. 95.
    VI.
    If the-tax could be thus arbitrarily “ graduated ” (!) without proportion, it ia obnoxious to the Constitution, because not equal and uniform. 36 Ann. 95.
    VII.
    If “ equality and uniformity can be reconciled with ‘graduation’ it should be done.” 36 Ann. 95.
   The opinion of the Court was delivered by

Poché, J.

Defendants, who are engaged in the business of insurance agents in the city of New Orleans, resist the claim of the State for licenses under the provisions of section 7 of Act No. 101 of 1886, which reads as follows:

“ Sec 7. Be it further enacted, etc., That each and every insurance company (society), association, corporation or other organization or firm, or individual, doing and conducting an insurance business of any kind, life, fire, marine, river, accident or other in this State, whether such company, society, association, corporation, or other organization or firm, or individual, is located or domiciled here or operating here, through a branch department, resident board, local office, firm, company, corporation or agency of any kind whatsoever, shall pay a separate and distinct license on said business for each company represented, and said licenses shall be based on the gross annual amount of premiums on all risks located within the State, and upon risks located in other States or foreign countries, upon which no license has been paid therein, as follows, to-wit

They appeal from a judgment which condemned them to pay the licenses as claimed, with interest of two 'per cent per month on the amounts thereof and with recognition of a first privilege in favor of the State on their property.

Their main contention hinges upon the fact as alleged by the State, and pioved by the record, that theirs is a business of insurance agent, and that they are therefore not amenable to a,law which deals altogether and exclusively with corporations or persons “ doing and conducting an insurance business

Under no rule of construction can the plain language of the statute hereinabove transcribed be held to refer to any other persons, firms or corporations but those who actually conduct an insurance business. A person, firm or corporation who does an insurance business takes risks and issues policies of insurance on its own account and responsibility. Those who carry on the business of insurance agents act only in a representative capacity, and place risks in insurance companies or corporations, either by soliciting business for their principals or in accepting for them risks or insurance business when tendered by third persons who desire to be insured. Insurance agents, in transacting their business, are not imsmers ; they are not the recipients or beneficiaries of the premiums paid on policies, and they cannot become personally liable for losses incurred under the risks accepted for their principals. In insurance contracts they occupy neither of the relations of insurer or,insured, but they are merelylntermediaries between those two classes of contracting parties.

Hence such persons cannot be legally held or defined to be persons, firms or corporations doing and conducting an insurance business of any land.

It appears from the record that insurance agents are only amenable to the law which requires them to be authorized to be cited and to stand in judgment in our courts as mandataries of the insurance companies or corporations for whose account they enter into insurance contracts, either in suits for liabilities growing out. of such contracts (acts of 1877), or “for all purposes connected with licenses and taxation ” (act 101 of 1886, section 7); and it appears that these defendants have fully complied with the requirements of the statute.

The distinction between a person or corporation doing an insurance business and an insurance agent is clearly discernible in law as well as in reason, and it has been observed and enforced by judicial authority.

In dealing with the subject of insurance agents in the case of New Orleans vs. Rhenish, Westphalia, Lloyds et als., 31 Ann. 781, this court used the following language:

“ They negotiate insurance upon commission, and to increase their incomes they procure authority from foreign companies to place risks for them, * * * and they solicit the patronage of persons desiring to insure; * * * they are under no obligation to solicit for any particular company, each company simply agreeing to accept such risks as they may place for them ; * * * this business is conducted in their own behalf and interest, they renting and furnishing their own offices and defraying all expenses out df their own means; * * * the policies delivered are issued by the companies at the places where they are domiciled, and said companies have and keep no offices here.
Under this state of facts it is manifest that the business carried on by these parties is a distinct, separate and individual industry or occupation, and only.taxable as such.”

That case was followed by the present Bench in the case of City vs. Virginia Insurance Company, 33 Ann. 11.

The defendants in the instant case are shown by the record to be precisely the insurance agents described in the quotation from the case in the 31st Annual, and w'e know of no law, and have been referred to none which proposes to tax them in their said “separate and individual industry or occupation.”

The attempt of the State, by means of this proceeding, is to make them personally liable for the license which is contemplated for the companies or corporations which, they represent, and to subject their own property to the privilege created in favor of the State against the property of the parties who may owe the license provided for by the statute.}

Such a proposition finds no sanction in reason or justice, and much less in the very law under which the proceeding has been instituted. Hence the judgment appealed from cannot be sustained.

It is therefore ordered, adjudged and decreed that the judgment rendered below against the defendants be annulled, avoided and reversed, and that the rule taken herein against them be discharged and dismissed, without costs to defendants in either court.


author: Todd, J.

text:
    No. 10,053.
    Mrs. L. E. Clairain, Individually and as Tutrix, vs. Western Union Telegraph Company.
    Xlio claim of tlie ■widow and cliildren of tlio deceased for damages was properly presented in a single suit.
    It is indispensable to an employer’s exemption from liability to bis servants for tbe consequence of risks incurred, that bo should be free from negligence. He must furnish tho servants tbo means and appliances which, the service requires for its efficient and safe performance; and if be fail in that respect, and an injury result, ho is liable to tbe servant.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.
    IF.'S. Benedict and IF. JH. Murphy, for Plaintiff and Appellee.

      Bayne, Denegre & Bayne, for Defendant and Appellant:
    1. The widow, individually, and as tutrix of her children, sues to recover damages for tho loss of her hnsband, who was an employee of tlie defendant. Individually she seeks to recover the damages which she sustained, and tbo damages which tbe deceased sustained . As tutrix she seeks to recover tho damages which the children sustained.
    2. The exceptions should have been sustained. Under the Act of 1884, the widow cannot sue in her own right, and for her own use, for the damages suffered by the deceased whore he leaves children. Tho right survives to her only when there are no cliildren, and not jointly, witlrtliem.
    8. A telegraph company is not the insurer of its employees, and its obligations to them is to exercise reasonable and ordinary care in providing such suitable and sate apparatus as common experience shows to be proper in order to avoid exposing their lives to unnecessary danger in the discharge of hazardous duties. Towns vs. R. U. Co., 37 Ann. • 634 ; Armour vs. Hahn, 111 U. S. Rep. 318; Randall vs. Baltimore and Ohio R. R. Co., 109 U. S 478.
    4. The claim here is that tho cross arm and wire were defective. The evidence shows that the cross arm was such as was in ordinary and common use, and such as had been used for many years, and suoli as had heen found to be the best for the purpose; that the ■wood of which it was made, and the manner of construction, were such as previous experience had shown to be proper, suitable and safe; that the wire was such as was and bad been ordinarily used aud found to be good, and had been used extensively just before and after the accident, and that this was the first and only time it broke.
    Servants assume the ordinary risks of the employment upon which they enter, and as the wire and ctoss arm were such as were and are generally, commonly and constantly used, they assume the risks to which, if any, they may be thereby subjected.
    5. If any iujnry befalls an employee by reason of a bidden defect which ordiuary inspec. tion and oversight would not detect, the master is not liable. It is one of the assumed risks of the employment. The servant takes the risk of any danger connected with the machinery or employment in which he is engaged, which ordinary inspection and carefulness on his part will disclose to him. 29 Ann. 791.
    6. The servant is under the same obligation as the master to provide for his safety. It follows that, if the knowledge or ignorance of the master and that of the servant in Tespect to the character of the machine, etc., are equal, so that both are either without fault or in equal fault, the servant cannot recover of the master. Thompson on.Negligence, pp. 1008 and 922; 6 Ann. 497; 125 Mass. Rep. 79, Cooley on Torts, 541.
    This rule has been universally applied in cases of overhead bridges, depot roofs, machinery and appliances. 40 N. J. (Law), 23; 1 Lansing, 108; 63 N. T. 449 ; 51 Maryland, 47; 50 Mo. 302; 78 Va. 709-
    7. Moran (p. 31) and Borley (p. 120) say it is the duty of the lineman to put up cross arms, to reject them if they have any cause of suspicion, and to remedy anything they seo wrong. McNulty, who put up tbe cross arm, was a fellow-servant of the deceased, in the same common employment. If McNulty was guilty of negligence, plaintiffs cannot recover.
    The orders to the men engaged at block and tackle pulling up wires come from linemen. (McNulty, p. 76 ; Parsons, p. 87.) And the man at the reel is expected to lodk out fox kinks. (Parsons, p. 114, and Donovan, p. 246.) Donovan, who was at the reel, was a fellow-servaDt in the same common employment. Kinks, if any existed, could he seen by ordinary inspection. In Randall vs» Baltimore and Ghio R. R. Co., 109 IT. S. 482, there is a clear statement of who ate fellow-servants.
    8". “ The servant who assumes the discharge of duties, the nature and mode of performing which are fully known to him, voluntarily subjects himself to risks necessarily incident thereto, and unless such risks are increased by some other fault or negligence of the master, injury resulting therefrom will not he the subject of reparation by the master.” "Wallis vs. Morgan’s Louisiana and Texas Railroad Company, 38 Ann. 156; Satterleo vs. Morgan Company, 35 Ann. 1166; Rover on Railroads, 1198; Pierce on Railroads, 379; Wood on Master and Servant, 109 D. S. 484; Amour vs. Hahn, 111 U. S. Rep. 318.
    9/ The judgment gives interest upon damages, and should he reversed. 1 Ann. 382 ; 3 Ann 702; 18 Ann. 28; 38 Ann. 191.
   The opinion of the Court was delivered by

Todd, J.

Louis E, Clairain, in the employ of the defendant'company, while engaged in putting up telegraph wires on Carondelet street, in this city, fell from a telegraph pole and was killed.

This suit is brought by the widow of the deceased in her own right, and as natural tutrix of. her minor children, issue of her marriage with deceased, to recover damages on account of his death — damages resulting from the sufferings of the deceased, and damages caused directly to the widow and children by the loss of the husband and father.

The cause and manner of the death is set forth substantially as follows:

That Clairain was employed by ihe company as a lineman in putting up and tying wires on their telegraph poles. That, whilst he was so engaged, some forty feet from the ground, and on a telegraph pole, it became necessary to stretch a wire on the outer end of a cross arm of the pole, their being five wires already strung on the pole, three on the inner and two on the outer side.

That in order to perform his work, it was necessary for him, by the aid of a steel spur or iron point, attached to one of his legs, to force the same into the telegraph pole as a support for his body, throw his other leg free of any iron support around the pole, and lean outward in a diagonal position from the pole to the outer wire of the arm attached to the pole, and there secure the telegraph wire with iron nippers or pincers, by a wire around the glass cup placed over the pin inserted in the cross-arm.

Whilst in this position, the wire being hauled taut many hundred feet ahead of him, by means of a reel and apparatus provided for that purpose by the company, the wire broke near the cross-arm at which he was the cross-arm itself broke where it was fastened to a telegraph pole, and by reason of his then necessary position, he could not recover his center of gravity when the break took place, and was precipitated heading to the stones beneath him. He was picked up and, after suffering intense agonies, died within a week, leaving a widow and three minor children as his heirs, deprived of his comfort, his support, his life.

It is specially charged that the wire furnished for the work which he was performing was second-hand wire, full of kinks, that is, where it had been twisted it had lost its strength, and that the cross-arm of the telegraph pole was of light material, too thin, improperly bored, and of such brittle nature as to be entirely unfit for the purpose for which it was used.

That Clairain has been for six years engaged in this business, both upon telegraph and telephone poles. That he was about thirty years of age, strong, active, and giving a regular support to his family.

The defendants excepted to the petition as follows :

1. That there was an improper joinder of parties upon distinct causes of action, and that the widow and children of the deceased could not in the same suit claim the damages which each have separately and distinctly sustained.

2. That the petition not specifying the quantum of damages suffered by the widow and the quantum of damages suffered by the children, and not giving any details or specifications of these damages, was too vague and indefinite to admit of proper answer and defense.

8. That in so far as the widow claimed that the cause of action of the deceased survived in her, her petition disclosed no cause of action

The first and third ground's of exception were overruled, and the second ground was maintained, with leave to amend.

Thereupon plaintiffs filed an amended petition, which, “reiterating the allegations of the original petition, averred :

“ 1st. That the damages sustained by the deceased, as hereinafter-averred, survived in her minor children, of whom petitioner is natural tutrix.
2d. That she individually had sustained $5000 damages.
“ 3d. That her children had sustained $5000 damages.”

Defendant excepted that the supplemental petition, in so far as it alleged that the cause of the deceased survived in her minor children, was inconsistent with the original petition, and changed its substance.

This exception was overruled and the amendment allowed.

We think the ruling of the judge a quo on these exceptions was proper, considering that all the damages claimed resulted from one cause, and All parties in interest were before the court, and that the widow was suing both in her individual and representative capacities, and since a judgment final and conclusive as to all the parties could be rendered in the suit pending, it was better to end the controversy in the one suit than to remit the plaintiffs to two different actions.

The disposition made of the matter affords no just ground of complaint, and is sanctioned by several adjudications. 39 Ann., Riggs vs. Bell, and authorities therein cited.

The answer was a general denial and an averment of contributory negligence on the part of the deceased.

The case was tried by the judge, and from a judgment in favor of the plaintiffs for $3000 the defendant has appealed.

There were many witnesses examined on the trial, and there is much conflicting testimony. We have thoroughly examined and considered it, and shall content ourselves with stating our conclusions respecting it, as id bears on the issues presented.

1. We are fully satisfied that there was no contributory negligence on the part of the deceased. There was no opportunity afforded him to test the strength and soundness of the wire and cross-arms furnished him, and which were required for the performance of the services for which he was engaged, and it is quite certain that had he insisted on making a sufficient test of them, and demanded that the requisite time be allowed him for that purpose, he would never have been employed. If there were defects in these materials it would have been impossible for him to have discovered them in the time that was afforded him. In fact, they were not discoverable on a slight inspection. There is no evidence of any want of care in the handling or manipulation of these materials in his work.

2. That both the wire and cross-arm broke in the manner described in the petition, there is no dispute, and that the death resulted from this breakage is equally admitted.

As stated, the testimony of many witnesses was taken to prove that those materials were perfectly sound, and per contra a number introduced to prove their unsoundness.

But, in our view of the matter the fact that they did break is a demonstration in itself that they were not sound, or at least of sufficient strength to answer the purpose for which they were used. For the evidence does not show satisfactorily that they were subjected to an extraordinary or unusual strain when the casualty occurred.

There was then no fault on the part of the employee.

It must be considered that the employment was a dangerous one, not dangerous in merely climbing or ascending the poles and reaching out to the ends of the cross-arms, and fastening the wires, but danger'ous from the fact that the wire and its wooden support might chance to be defective and unsound. Those necessary for his work the employee had a right to presume were entirely safe, and he was entitled to rest on this presumption for his security. Hanson, tutor, vs. Railway, 38 Ann. 111.

And it further follows that the employment being a dangerous one, as conceded and asserted by the defendant’s counsel, the defendant company, the employer,' should be legally held to the greatest care and diligence in the selection of the necessary materials, and everything else calculated to insure the safety of the employee in the prosecution of his work. Ib. 10 Ann. 38; 14 Howard, 486.

It is indispensable to the employer’s exemption from liability to his servants for the consequence of risks thus incurred, that he should be free from negligence. He must furnish the servants the means and appliances which the service requires for its efficient and safe performance ; and if he fail in that respect, and an injury result, he is liable to tbe servant as be would be to a stranger.” Chicago R. R. Co. vs. Ross, 112, U. S. R. 383.

Tho next question that arises is: Did the Company comply with this requirement?

As stated, we are satisfied that the materials furnished the employee in this instance were not sound, and consequently not safe; and the record contains no evidence that these materials were carefully selected by tbe company, nor is there satisfactory proof that there was even a proper inspection of tbe same before being used.'

Under these circumstances we are forced to the conclusion that there was not that degree of care and diligence shown by tlie company that under the legal principles we have announced, would exempt it from liability for tbe fatal injury to its employee in this instance. It was in fault, and from that fault resulted tbe death of tbe employee.

Tile judgment of tbe lower court is criticized by tbe defendant counsel as not being in accord with the pleadings, nor in response to the prayer of the petition in decreeing the amount awarded ($3000) jointly in favor of the widow and the minor heirs.

This inaccuracy, If it be one, affords no ground of complaint to the defendant. It does not impose an additional burden, and it is a matter of indifference to the company, to whom the money goes, so that it is final and conclusive against all parties, which it is. There is no complaint of the plaintiffs in this regard, and the money, when realized, can be adjusted between tbe mother and her children, according to their respective rights.

Eeaehing the conclusions announced, we find no reason for disturbing tbe judgment of the lower court, and it is therefore affirmed with costs.


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    No. 10,061.
    Jean Deslottes et al. vs. Baltimore and Ohio Telegraph Company.
    At tho request of a customer a country merchant telegraphed to his New Orleans merchant to ship two barrels of bi-sulphite of lime, the dispatch being addressed to 291 Rampart street. This street has two divisions, known as North and South Rampart street, each having a No. 291. The name not appearing in tho directory the defendant’s messenger carried the dispatch to 291 north Rampart, and being informed by the servant that S. Kahn lived there, left the dispatch and accepted the receipt of the householder. It turned out that Kahn lived on south Rampart; the dispatch did not reach him and tho goods were not sent. Plaintiffs, at whose request the country merchant sent the dispatch, were sugar planters who required the bi-sulphite to save their cane, which had been frosted, and they sue defendant for $2500 for sugar and molasses lost. Held:
    1. There was no privity between plaintiffs and ^defendant, the evidence showing that the country merchant acted, not as agent, but as merchant seeking to supply himself with goods in order to sell the same to a customer at a profit, and that the goods, if shipped, would have remained his property and at his risk until sold to the customer at a price agreed.
    2. The failure to deliver resulted from the insufficient and incomplete address, and from no negligence of defendant, who pursued the customary and only practical method of conducting its business.
    3. The damages claimed are too remote and wanting in cansal connection. There is no reason why the default of a telegraph company in delivering an order for goods should he visited with heavier penalty than the default of a common carrier in the delivery of goods actually shipped, viz: the value of the goods at the point of destination.
    APPEAL from the Civil District Court, for the Parish of Orleans. Monroe, J.

      Leonard, Maries and Bruenn for Plaintiffs and Appellants.

      J. JR. Beclcwith for Defendant and Appellee:
    Telegraph companies, in the absence of statutory provisions, are not common carriers ; their liability is not measured by the same rules; their relation to their patrons is one of contract. Western Union Telegraph Company vs. Carew, 15 Mich. 525; Baldwin vs. U. S. Telegraph Company, 45 ÍT. Y. 744; Ellis vs. American Telegraph Company, 13 . Allen; Leonard vs. Telegraph Company, 41 ET. Y. 544 ; 2d Thompson on Heg. 836.
    The rule of damages for non-delivering telegraphic messages is its natural and necessary consequence of the breach of the contract as contemplated by the parties interpreting the contract, in the light of the circumstances under which and the knowledge of the parties of the purpose for which it was made; and when a special purpose is intended by one party, hut is not known by the other, and is not indicated by the message Itself, snob special purpose will not be taken into account in the assessment of damages for not sending. Baldwin vs. Tel. Co., 45H. Y. 744; Cory vs. Thames Ironworks, L. R., Q. B. 181; Leonard vs. Tel. Co., 41 U. Y. 544; Hadley vs. Baxendel, 9 Exch. 341; U, S. Tel. Co. vs. G-ildersleeve, 29 Maryland 232; Landaberger vs. Tel. Co , 31 Barb. 533; U. S. Tel. Co. vs. Wenger, 55 Pa. 262; Caudee vs. Tel. Oo., 34 Wis, 471.
    “ The law, for wise reasons, imposes upon a party subjected to injury from the breach of a contract, the active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness allows the damages to be unnecessarily enhanced, the increased loss justly falls on him.*’ Hamilton vs. McPherson, 28 H. Y. 72, 76. This is the general rule, but most aptly stated in this case.

      Oausaproxima non remota spectaiur, applies where a telegraph company is in default, but their default is made to a party only by the operation of some other intervening cause. Lowrey vs. Tel. Co., 60 H. Y. 198.
   The opinion of the Court was delivered by

Fenner, J.

On the 14th December, 1885,1. Wildenstein, a merchant of Jeannerette, in this State, sent the following dispatch over defendant’s line:

“Jeannerette, La. Ship without delay two barrels bi-sulphate in liquid. T. Wildenstein. To S. Kalin, 291 Rampart street, New Orleans.”

S. Kahn is a small merchant in New Orleans W'hose name does not appear in the city directory, and defendant had no guide to his location except the address in the dispatch.

Rampart street crosses Canal street, and above the latter is designated as south Rampart and below as north Rampart, and the numbering in each diiection begins at Canal, so that there is a 291 Rampart above and also below Canal.

The messenger charged with the delivery of this dispatch took it to 291 north Rampart, which he found to bear the sign of Dr. Souchon. He says: I pulled the bell and the servant came out. I asked her if Mr. S. Kahn lived there. She said Dr. Souchon lived there. I asked her if S. Kahn lived there, and she said yes, and she took the message and gave me ten cents. She signed the receipt in the name of cMrs. Dr. Souchon.’ ”

Shortly afterwards, Wildenstein called on the operator in Jeannerette and inquired if the message had been delivered. The operator communicated with the New Orleans office and was answered that it had been delivered, which answer he communicated to Wildenstein.

It turned out that S. Kahn lived at 291 south Rampart street, and of course the message never reached him, and tire order was not filled.

Now come the plaintiffs, Deslottes and Lejeune, who are cultivators of sugarcane near Jeannerette, who aver that on December 14, 1885, their cane on 22 acres had been so effected by cold and frost that in order to manufacture the same into sugar and molasses it was necessary to have promptly two barrels of bi-sulpliate of lime in liquid; that finding none of that article in Jeannerette they requested their merchant, Wildenstein, to telegraph for it;, that he did accordingly telegraph, and that if the message had been delivered the bi-sulphate would have been received in time to save their cane; but that, owing to the fault and negligence of defendant in not making such delivery it was not received and they incurred thereby a loss of twenty-five hundred dollars, for which they now seek to hold defendant responsible.

Plaintiffs have no case for various reasons, viz.:

1. The evidence does not establish such privity between plaintiffs and defendant as would sustain the recovery. Wildenstein appears-to have acted not as agent of the plaintiffs, but as a merchant who, at the request of a customer, sought to supply himself with goods which the latter wanted, in order to sell the same to him at a profit. The goods would have been the property, and at the risk, of Wildenstein until sold to plaintiffs at a price agreed on.

2. The evidence does not bring home such negligence to defendant as would make it liable for the non-deliverj. The failure resulted from the improper or incomplete address of the dispatch. It was addressed to No. 291 Rampart street, without designating north or south, and was delivered at No. 291 Rampart street, after due inquiry and assurance that the party lived there. Had the address been 291 south Rampart street, the mistake would not have occurred. The absence of Kahn’s name from the directory left defendant no means of determining which of the two Ramparts was meant, and the course pursued in making inquiry, and on being informed that the party lived in the house, taking the receipt of the householder or person receiving the dispatch, conformed to the customary and only practical method of conducting its business.

3. Moreover, the damages claimed are too remote and wanting in causal connection with the negligence complained of. The cause o plaintiffs’ loss was the frosting of their cane. There was nothing in the dispatch to advise defendant that, in ordinary course, any such damages might flow from a mistake in delivery. We can discover no reason why the default of a telegraphic company in failing to deliver an order for goods should be visited with heavier penalty than the default of a common carrier in failing to deliver goods actually shipped; and it is well settled that the latter is measured according to the value of the articles. Sedgwick on damages, p. —, Segura vs. Reed, 3 Ann. 695.

Judgment affirmed.


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    No. 10,106.
    Charles U. Gaudet vs. Charles J. Gauthreaux et als.
    Rules applicable to estoppels in pais cannot always be invoked, in cases of estoppels by reci- . tala, particularly in judicial proceedings.
    The law holds parties to their allegations of record, and does not permit them to falsify what they have solemnly declared to be the fact.
    The only means by which courts can protect the integrity of judicial proceedings, is the sanctity which the law throws around them.
    To the rule there are exceptions, witbin. which this case does not fall.
    A party who has judicially declared to have sold property to married women, authorized by their husbands and purchasing for themselves, will not he heard subsequently to say that he sold the same to the husbands and to claim from them a deficiency between the notes .and the proceeds of the real estate, under judicial authority.

      APPEAL from the Twenty-second District Court, Parish of St. James. Rost} J.

      JRobt. G. Dugué for Plaintiff and Appellant.

      Sims <& PocJié for Defendants and Appellees:
    1. It is of the essence of good conscience ar-d morality that a party litigant should he consistent in his declarations, acts and demands "before a court of justice. That is also the law, and it is as it should be, so that judicial forms and remedies may not be perverted to unworthy uses. %
    2. Our jurisprudence has uniformly recognized and enforced the wise and salutary doctrine which firmly hinds a party to his judicial declarations and forbids him from subsequently contradicting his statements thus made. Earrar vs. Stacy, 2 Ann. 211; 29 Ann. 293: Glidley vs. Connor, 4 Ann. 416; 32 Ann. 962, 979; 33 Ann. 1370; 35 Ann. 743.
    “ The doctrine is so firmly sanctioned both by reason and justice, that our courts have unhesitatingly extended its operation to the State itself.” 28 Ann. 460; ‘28 Ann. 121; 34 Ann. 360; 30 Ann. 1309; 37 Aim,-107: Greenleaf, Yol. 1, p. 204; Bigelow on Estoppel, p. 293, Eos. 3 and 4.
    3. The record clearly shows: That from the 'time of the sale by plaintiff and his wife of their undivided half of the plantation to the four Gauthreauxs, Charles, Lise. Aline (wife of Eicolle, appellee, and Céline (wife of Poirier, appellee) — 31st of March, 1884 — until plaintiff’s receipt of their share of the proceeds of sale in the partition suit of Beltran, in April, 1886, he, plaintiff, studiously treated Aline and Céline Gauthreaux as part owners of the property and as his debtors. Their husbands (appellees here) had been entirely ignored np to that time as parties in interest: 38 Ann. 106, Beltran vs. Gauthreaux et als. After receiving'the shares of Aline and Céline as co-proprietors of Beltran in the partition suit, and crediting a part of the amount on the notes held by him, plaintiff, in May, 1886. filed this suit against them and their husbands (appellees here) in solido % to recover the balance due on the notes. Appellees interposed the plea of estoppel, and it was sustained by the district court.
    4. It is contended by the appellees that the principles and authorities above set forth and cited are directly applicable to the state of facts presented by the record, and that the judgment of the lower court ought to be affirmed.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover the difference between the amount of certain notes and that which was realized by the judicial sale of real estate by which payment was secured.

It is brought against two married women, their husbands and two other persons, who signed the notes, which were issued in settlement of the price of the property subsequently thus sold.

It is founded upon the averment that the sale of the land was made to the husbands by the plaintiff, and that they are hound in solido for the difference claimed.

The defense is that the plaintiff is estopped from claiming any part of the notes from the husbands, because they never acquired the property and never bound themselves to the payment of the notes to any extent, the plaintiff himself having judicially admitted that, when he sold the property, he conveyed it to the wives, and that this declaration estops him from now pleading that he sold it to the husbands.

Prom a judgment sustaining the plea, the plaintiff has appealed.

, It appears that after the maturity of the notes the plaintiff brought suit via executiva to enforce their payment, annexing a copy of the act of sale by him to the purchasers and also the original notes, to his petition.

• The act declares that the vendor (plaintiff) sells his three-sixths, or one-half, of the property among others, to the two ladies, Alice G-authreaux, wife of Arthur Nicolie, and Céline G-authreaux, wife of Eugene Poirier, they being joined and duly, assisted and authorized by their said husbands, all being present, accepting and purchasing for them selves, their heirs and assigns, now and forever, etc.

In the petition for executory process, the plaintiff averred that he had sold the real estate to the two ladies and two others, the former signing the notes, each, with the authority of her husband. The act and the notes form pait of the petition in the present suit.

The declarations in both the act and in the petition are therefore clearly that the property was sold to, and the notes signed by, the wives, authorized by their husbands, and that they purchased for themselves.

If it be true that such was the case, how can the plaintiff be now heard to say that he sold to the husbands, who are liable as heads of the community?

He is concluded by his judicial averments, which consist not only of the allegations in the petition, but also of the reciprocal acknowledgment embodied in the act of sale, which is annexed to the petition as part.

The act does not purport in the least to be a purchase for the community or by the husbands. On its face, it purports to be a purchase by the wives for themselves and heirs forever.

This declaration would conclude the husbands and it does surely the vendor.

It may subserve some useful purpose, auxiliary to the views expressed and to the conclusions reached, to say that the property affected with vendor’s lien and special mortgage to secure the notes in question was sold in a partition suit at the instance of R. Beltran, as co-owners, to which the plaintiff was a party, and that in the petition the wives and not tlie husbands were represented as co-proprietors.

Reference to those proceedings shows that it is out of the amount realized by the sale that the plaintiff received the sum with which the notes now sued on, were credited.

It is unnecessary to state how far tiie plaintiff may be considered as concluded by his acts and doings, but it may be asked rwhether, if, instead of receiving the proceeds, he had become the purchaser, he could have denied the co-ownership of the wives, and claimed title from the husbands.

The doctrine of estoppel, to which appellant refers, applies exclusively to cases of estoppel en pais, and not to cases of estoppels by recitals, or written admissions, the strongest of which is that of acknowledgments or declarations in judicial proceedings.

The law holds parties to their allegations of record. It does not allow them to play fast and loose, to falsify what they have solemnly declared to be a fact — the truth.

Such averment’s are the highest evidence against the party making them. They are not subject to explanation or contradiction ab extra, as a rule; so that what appears to be of record is to be proved thereby only, and nothing conflicting therewith can be admitted. Delacroix vs. Provost, 6 M. 280; Freeman vs. Savage, 2 Ann. 269; also, 211; Denter vs. Erwin, 5 Ann. 18; Gridley vs. Connor, 4 Ann. 416; Webster vs. Smith, 6 Ann. 719; Edson vs. Freret, 11 Ann. 710; Bigelow on Estoppels, 4 (note), 266 et seq; 293 Nos. 3 and 4.

A previous court has well said :

It is a well-settled rule in the administration of justice that a party will not be permitted to deny what he has solemnly acknowledged in a judicial proceeding. The only means of courts to protect the integrity of judicial proceedings are the sanctity which the law throws around them.” Bender vs. Belknap, 23 Ann. 765; see also Devall vs. Watterston, 18 Ann. 141; New Orleans vs. Southern Bank, 31 Ann. 564; 30 Ann. 1309; 32 Ann. 962, 979; 33 Ann. 1370.

To the broad rule for estoppel there exist numerous exceptions, but within these, the present case does not fall.

The district judge ruled correctly.

Judgment affirmed:


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    No. 10,059.
    Alphonse Martin vs. Muncy & Marcy.
    The right of action of an accommodation acceptor of a draft, and who pays or retires tho same with his own meaus against the drawer, is for reimbursement, and it rests on the implied or conventional promise of the drawer to indemnify him.
    By such a transaction the drafts have no longer any value as such, and the drawer is en • tirely discharged of all obligations thereon, his liability being to the acceptor for indemnity, and the draft being an item of evidence.
    The fact that a member of a commercial firm in whose name negotiable paper has been issued by the managing partner, is ignorant of the transaction, and that ho entry of the same has been made in the partnership books, will nob release him from liability if it is in proof that tho transaction had been made for and had enured to the benefit of the firm.
    The acceptor who has paid such draft can recover only legal interest on the promise of indemnity.
    A PPEAL from the Civil District Court for the Parish of Orleans. LJL Tissot, J.

      Okas. 8. Mice for Plaintiff and Appellee.

      T. Gibnore <& Sons for Marcy, Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This controversy arises out of the following facts :

Defendants were commercial partners as lumber dealers in New Orleans from August, 1878, to April 17, 1885.

In March, 1884, plaintiff, as an accommodation, endorsed a note of-$6000- executed by Muncy in the namo of the partnership. After several renewals of the note the debt was placed in a different shape, and by consent of all parties it was represented by four drafts of $1500 each, payable at three, six, nine and twelvemonths, with interest of 8 per cent per annum from date, March 14, 1884, signed in the name of Muncy and Marcy, to their order, and accepted by plaintiff.

Alleging that at the maturity of the three and six months’ drafts he paid and retired them, plaintiff brings this suit to recover of the partners of the firm now in liquidation, and ¿a solido, the aggregate amount which he alleges to have paid for them as accommodation acceptor, with 8 per cent interest per annum from March 14, 1885, until paid.

Muncy made no defense; Marcy pleaded a general denial, coupled with the special averment that he knew nothing of the existence of the drafts in question. He alone appeals from a judgment against both defendants in solido, with interests as prayed for.

Under a proper application of the universal rules which govern the rights and obligations of commercial partners, on proof of payment of the two drafts in question, plaintiff’s right to recover of defendants the amount thus paid, as their accommodation acceptor, can hardly be questioned. Edwards on Bills, on Notes, etc., section 522.

But the pith of Marcy’s defense is that the original loan of $6000, which was the consideration of the note endorsed by plaintiff, was not a transaction, or for the benefit, of the partnership, but that the amount thus borrowed was used by Muncy in his own private affairs, entirely disconnected with the firm of Muncy & Marcy. Hence he contends that the two drafts accepted by plaintiff and representing in part the original loan, were tainted with the same nullity as an alleged debt of the firm, which characterized the original note of $6000.

In support of that contention appellant relies on evidence which shows that he was entirely ignorant of the whole transaction; that the books contained no entry of the same, and that Muncy had had during the existence of the partnership many business transactions on his own individual account with plaintiff, who was, during all that time, in the same line of business as the firm Those facts are undeniably shown by the record.

But, on the other hand, the evidence shows that Muncy was ihe managing partner of the defendant firm, whose business was under his exclusive control; that Marcy paid little or no attention to the partnership operations or books, and that the business was conducted in a very loose and irregular manner, in consequence of which many of the most important transactions conducted by the managing parner, either on the streets or at the lumber exchange, wero never reported to the book-keeper, and of coujse never entered on the books of the concern.

As an illustration, it appears from the record that Marcy’s father, a man of wealth, who had assisted the firm, andhad had large and important transactions with it, appeared on the books as its debtor for $80, when in truth he was- their creditor for $20,000, as judicially demonstrated in suit by him against the firm at the time of its dissolution.

'While the record does show that Muncy had had numerous transactions on his individual account with plaintiff, the e.vidonce is conclusive of the fact that the sum of $6000 realized on the note of March 13, 1884, endorsed by plaintiff, was actually used by Muncy, the managing partner, for the use and in the business of the firm. Under its effect plaintiff has discharged the burden of proof which was on him to show that the transaction had been made truly in the name and for the benefit of the firm. Mechanics and Traders’ Insurance Company vs. Richardson & Cary, 33 Ann. 1308; Mutual National Bank vs. Richardson & Cary, 33 Ann. 1312.

Appellant’s next contention is that the evidence is insufficient to prove the payment of the two drafts by plaintiff as acceptor, possession of the same being of itself insufficient to prove such payment. The possession of the drafts is undoubtedly an important link in the chain of evidence to that effect. Edwards, bills and notes, section 522.

And in this case that evidence is supplemented by the testimony of plaintiff and of the holder of the drafts. The latter testifies that the payment was effected partly in money and partly by securities transferred to him by the acceptor. This is a sufficient and legal payment; by it the drawers were fully discharged of all obligations resulting from the drafts, and through it they have become liable on their promise to plaintiff to reimburse him for such payment.

Appellant then makes the point that parol testimony is incompetent to prove the promise to pay the debt of another, in support of which he invokes the provisions of Act No. 208 of 1858, now article 2278 of the Civil Code.

But the prohibition therein contained has no possible application to the facts of this case. The promise of plaintiff to pay the debt of defendants was evidenced by the drafts, and therefore in writing; the promise to reimburse him was not a promise to pay the debt of another ; the obligation was to pay their own debt.

Appellant’s last contention is that plaintiff is not entitled to interest of 8 per cent per annum, as allowed in the judgment. -That point is partially good.

The drafts were stipulated to bear 8 per cent per annum interest from date until paid.

That interest was paid by plaintiff, and defendants owe it to him. But the interest on the amount paid by him, from the date of payment until final settlement, was not determined by contract, hence it cannot be conventional, but only legal interest. The obligation of the drawers to reimburse their accommodation acceptor, is not shown to have been accompanied by any stipulation to pay any rate of interest, hence none but legal interest can be claimed.

Our conclusion is therefore that plaintiff is entitled to recover the full amount of the drafts, including 8 per cent per annum interest thereon, which had accrued at the time that he took them up, with legal interest thereon from the date of payment until final payment by defendants, and the judgment must in consequence he amended on the score of interests.

From the drafts it appears that interests had accrued on one of them to the sum of thirty dollars, and on the other to sixty dollars, the first having been taken up on June 17, and the other on September 14, 1885.

It is therefore ordered, adjudged and decreed that the judgment appealed from he amended by reducing the rate of interest allowed to plaintiff from 8 to 5 per cent per annum, said interest to run on the sum of $1530 from June 17, 1885, and on the sum of $1560 from September 14, 1885, until final payment, and that, as thus amended, said judgment he affirmed, costs of appeal to be taxed to plaintiff and appellee.