author: Morgan, J. Wyly, J.,

text:
    No. 486.
    John Chaffe & Brother v. John T. Ludeling et als. W. J. Q. Baker, intervenor.
    This court is satisfied that the document sued on is the property of plaintiffs and not of the intervenors, by whom it was transferred, and not merely pledged to plaintiffs, as he alleges, to guarantee the payment of the indebtedness of a third party.
    The position taken by the intervenor that the obligation sued on was not stamped when it was delivered to plaintiffs, and that it is therefore a nudum pactum, is entirely untenable. If he gave them the obligation without being stamped when stamps should by law have been placed upon it, it was a wrong doing of his own from which he can draw no protection. Besides, the plaintiffs had the right to cause the required stamps to be put upon it. The requirements of the law are complied with, if the stamps are on the obligation, when sought to be enforced.
    Allegations that intervenor, when he parted with the obligation, which was negotiable, and of which he claims the ownership, did so despite the agreement he was under with his associates to keep it out of commerce, can do him no good, and he can not be listened to on this point.
    It is conceded that the defendants, with others, at sheriff’s sale, purchased all the rights, privileges, franchises and other property belonging to the Yicksburg, Shreveport and Texas Eailroad Company. This company was a corporation established by law. As a corporation thus established, its members were not personally responsible for the debts of the company beyond the amount of stock which they individually held.
    As to the defendants, they did not acquire by their purchase the immunity of the stockholders of that company from liability beyond the amount of their stock. This purchase conveyed to them all the rights, privileges, franchises and other property of said company ; but it did not and could not make them a corporation, for corporations are created only by special act of the Legislature, or in the manner provided for by law. As regards the rights, privileges, franchises and other property of the company aforesaid, the purchase made defendants joint owners thereof and nothing else. It did not make them that company.
    If, as alleged, the ratification of the sale by the State constituted them a corporation, their corporate rights would take effect only from the passage of the act. But the act was passed subsequently to the publishing of the instrument sued upon. The rights of the holders of the obligation lmd vested, and the Legislature could not shake them.
    Defendants’ plea that the obligation sued on purports tp have been issued by the Yicksburg, Shreveport and Texas Eailroad Company, and therefore that they, the defendants, can not be liable individually, does not protect them. Obligors are hound not by the style which they give to themselves, but by the consequences which they incur by reason of their acts.
    It was sufficient that the instrument sued upon was stamped when offered in evidence.
    This court can neither add to the law nor take from it, and as the law limits the solidarity of obligors ongaged iu carrying personal property for hire to that property which is earned on ships, or other vessels, it can not be extended to those who carry it on a railroad. Hence the defendants are liable jointly, and not in solido.

    It appears that others besides the present defendants are the owners of this road. Their names were given to the plaintiffs by the defendants. Tbey should have been made parties to the suit. The owners are nine in number. Judgment is therefore rendered in favor of the plaintiffs and againat the defendants for the proportion due by each.
    APPEAL from the ■ Fourteenth Judicial District Court, parish of Ouachita.

      Robert J. Oaldivell, attorney at-law, selected to try this case. Morrison & Farmer, for plaintiffs and appellees. W. J. Q. Balter, in propria persona, intervenor and appellant. Franlc B. Stubbs, for defendants and appellants.
   Morgan, J.

John T. Ludeling, John Ray, Francis P. Stubbs and William R. Gordon, are sought to be made responsible in solido upon the following instrument:

Office of the Vicksburg, Shreveport and Texas Railroad Company, $5168 08. Monroe, La., November 6, 1866.

On or before the third February, 1869, the Vicksburg, Shreveport and Texas Railroad Company will pay to the order of Wesley J. Q. Baker five thousand one hundred and sixty-eight dollars and eight cents, value received, with eight per cent, interest per annum from the third day of February, 1866, till paid, payable annually.

Signed, JOHN T. LUDELING, President.
Attest:
Jos* P. McGuire, Secretary.

Defendants’ responsibility is claimed upon the allegations that on the third February, 1866, they purchased the Vicksburg, Shreveport and Texas Railroad at sheriff’s sale, and that previous to the purchase they formed themselves into an association for the purpose of buying the railroad in question and operating it in carrying freight and passengers for hire. This, plaintiffs say, constituted them common carriers and commercial partners. Upon this ground judgment is asked against them in solido.

Defendants excepted, first, that the maker of the instrument, the Vicksburg, Shreveport and Texas Railroad Company, a corporation created by and according to law, is alone liable thereon, and not the individual stockholders, of whom defendants are only a portion; second, that defendants, if liable at all, are only jointly so with all the other stockholders of the company, who have not been sued ; third, they plead the prescription of three and five years. The exceptions were overruled, and, without waiving them, but on the contrary reiterating them, they answered, admitting that the obligation sued on was signed by Ludeling as President of the Vicksburg, Shreveport and Texas Railroad Company, “a company chartered by the acts of the Legislature of the State of Louisiana, and that it was countersigned by the Secretary of said company, who affixed the seal of the company thereto, but they deny that they are or ever were individually liable in any manner under said obligation.”

■ As between the plaintiffs and the defendants the serious questions presented for our solution are—

Mrst — Are the defendants, individually, liable on the obligation sued upon Í

Second — If liable at all, is their liability solidary or joint ?

Before entering upon the consideration of these questions, we must investigate the pretensions of the intervenor W. J. Q. Baker. He alleges that he, and not the plaintiff, is the owner of the obligation sued on. If he is, of course the suit is at an end. He alleges that the obligation was made in his favor and intended to be between them and the defendants and others a statement of accounts among themselves; that when he gave it to plaintiffs it was not stamped, and that they were never authorized to put stamps upon it. He shows that it was given to plaintiffs by him as security for a debt due by Mrs. Wilson ; that this debt of Mrs. Wilson was never ascertained; that if it ever existed it is extinguished by payment and prescription; that they took no steps to secure the debt or keep it alive, and made no effort to protect the surety, and abandoned the whole claim; that they have no right to bring this suit until they have shown contradictorily with Mrs. Wilson the amount of her indebtedness. He prays that the suit be dismissed; that the indebtedness of Mrs. Wilson be declared prescribed and discharged by her bankruptcy, and, if the suit is not dismissed, that the obligation sued on be declared to be his property, and that it be delivered to him.

Baker was the holder of the document sued upon. It was made payable to his order. It was in negotiable form. He does not deny having pledged it to the plaintiff. It was pledged to secure the debt of a third party. But the act of pledge was a voluntary one on his part, and it was competent for him to make it. The indebtedness for which it was pledged was acknowledged by him, aud it had been contracted by him. He can not be listened to now when he denies it.

The evidence satisfies us also that he subsequently transferred the obligation which had before been pledged to the plaintiffs in full property and in satisfaction of this indebtedness. He swears he did not. But his testimony is contradicted by several witnesses. Shortly after the transfer he went into bankruptcy. To enable him to receive the benefit of the bankrupt law, it was necessary that he should file a schedule of all his property, and to swear to the fidelity of his return. If the obligation sued on was only in pledge with the plaintiffs, it was still owned by him. He had a residuary interest in it, and upon his, or his assignee, paying the amount for which it stood pledged, it would have been returned to him or to his assignee. He did not place it upon his schedule. As he swore to the truth of his return, if he did not place it on that return, the only charitable conclusion that we can come to is that it was not his property.

His position that, because the Obligation sued on was not stamped when it was delivered to the plaintiffs, it is therefore a nudum pactum, is entirely untenable. If he gave them the obligation without being stamped when stamps should by law have been placed upon it, it was a wrong doing of his own from which he can draw no protection. Besides, the plaintiffs had the right to cause the required stamps to be placed upon it. The ^requirements of the law are complied with if the stamps are upon it when it is sought to be enforced. It is sufficient for us to know that they are upon it when the case comes before us for investigation. The statement that, when the obligation was given to him it was not stamped because it was only intended as a memoranda of settlement between himself and those interested with him in the railroad, and that they were purposely left off it, that it should not be negotiated or transferred, does him no good. It only shows that he parted with the obligation despite the agreement he was under with his associates to keep it out of commerce. Under no hypothesis can he be listened to when he claims ownership of the obligation. His intervention, therefore, must be dismissed.

This brings us to the case between the plaintiffs and the defendants.

It is conceded that the defendants, with others, bought at sheriff’s sale the property of the Vicksburg, Shreveport and Texas Railroad. To state the case more broadly, it is conceded that the defendants, with others, at sheriff’s sale purchased all the rights, privileges, franchises and property belonging to the Vickburg, Shreveport and Texas Railroad Company. This company was a corporation established by law. As a corporation thus established its members were not personally responsible for the debts of the company beyond the amount of stock which they individually held.

Now the question propounded to us is: When Ludeling and others purchased the rights, privileges, franchises and property belonging to the Vicksburg, Shreveport and Texas Railroad, did the immunity of the stockholders of that company from liability beyond the amount of their stock attach to them ?

The question, we think, must be answered in the negative. The purchase of Ludeling and his associates conveyed to them all the property of the corporation which was sold by the sheriff. It conveyed to them the privileges and the franchise of the corporation, its powers to operate the railroad, etc.' The sheriff’s sale made them the owners of the road, its right of way, its property, its franchise, but it did not, and could not, make of them a corporation, for corporations are created only by special act of the Legislature or by associations under the general law regulating the mode in winch corporations are formed. This sale conveyed to them the title to the rights and property of the company, but, as regards those rights and that property, it made them joint owners thereof, and nothing else. In other words, the sheriff’s sale to Ludeling and his associates of the property, rights, privileges and franchise of the Vicksburg, Shreveport and Texas Railroad Company did not make of them that company. It only conveyed to them, in joint ownership, the property which they bought.

It is contended that the Legislature of the State, by subsequent act, ratified this sale. This is true. But no one here disputes the verity or validity of the sale. If this act of ratification, besides the ratification, constituted them a corporation, their corporate rights would take effect only from the passage of the act. The act was passed subsequent to the publishing of the instrument sued upon. Its effect was not and could not be retroactive. The rights of the holders of the obligation had vested, and the Legislature could not shake them.

The defendants have referred us to many decisions of the courts of England and of our sister States, collected in Redfield on Railways, in support of their defense. So far as we have been enabled to examine them, they do not apply. They relate to the power to sell railroads under mortgages, their franchises, and the right to operate them, none of which are questioned in this controversy.

They also contend that the obligation sued on purports to have been issued by the Vicksburg, Shreveport and Texas Railroad Company^ and therefore payment can not be exacted of them individually. This does not, in our opinion, protect them. Obligors are bound not by the style which they give to themselves, but by the consequences which they incur by reason of their acts. It matters not what they chose to call themselves. The question is, how do their acts bind them ?

They next contend that the document sued on should not have been received in evidence, because it was not property stamped when issued. It was stamped when it was offered in evidence, and this we think is sufficient. The last defense set up is prescription. But it was not urged in argument, and it can not avail them. The note was due in February, 1869; this suit was instituted in'I878. The only remaining question is the extent of the defendants’ liability. Are they bound solidarity or jointly 9

Plaintiffs contend that they are each bound for the entire debt, they being engaged in carrying personal property for hire. The code declares that commercial partners are those who are engaged in “ carrying personal property for hire in ships or other vessels.”

In this sense we understand vessel to mean any structure which is made to float upon the water, for purposes of commerce or war, whether impelled by wind, steam or oars. Vide Webster’s dictionary, verbo: vessel.

Now it seems absurd that, if two or more persons should associate themselves together for the purpose of conveying personal property for hire between two points on some of the streams in Louisiana too shallow for navigation except in small boats prbpelled by oars, they would be bound, with regard to everything connected with such employment, in solido, while the operators of a railroad are only bound jointly. But we can neither add to the law nor take from it, and as the law limits the solidarity of obligors engaged in carrying personal property for hire to that property which is carried on ships or other vessels, we can not extend it to those who carry it on a railroad. We therefore conclude that the defendants are liable jointly and not in solido.

Now it appears that others besides the present defendants, are owners of this road. Their names were given to the plaintiffs by the defendants. They should have been made parties to the suit. The owners are nine in number. Judgment must therefore be rendered in favor of the plaintiffs and against these defendants for the proportion due by each.

It is therefore ordered that the judgment of the district court be amended, and that each of the defendants herein pay one-ninth part of the judgment herein, and as amended the judgment be affirmed, appellees to pay costs of appeal.

Wyly, J.,

concurring. The plaintiffs sue the defendants, John T. Ludeling, John Eay, Francis P. Stubbs and William E. Gordon, on the following instrument:

“ Office of the Vicksburg, Shreveport and Texas Eailroad Company, $5168 08. Monroe, La., November 6,1866.
“ On or before the third day of February, 1869, the Vicksburg, Shreveport and Texas Eailroad Company will pay to the order of Wesley J. Q. Baker five thousand one hundred and sixty-eight dollars and eight cents, value received, with eight per cent interest per annum from the third day of February, 1866, till paid, payable annually.
“ JOHN T. LUDELING, President.
“Attest: Jos. F. McGuire, Secretary.”

They allege that said defendants and their associates on the third day of February, 1866, “ purchased the Vicksburg, Shreveport and Texas Eailroad at sheriff’s sale, with all its rights, privileges, franchises, locomotives, cars,” etc.; that previous to said purchase they formed themselves into an association for the purpose of buying said railroad and operating it in carrying freight and passengers for hire as common carriers and commercial partners; that, immediately after said purchase, they took possession of and operated the railroad in said capacity, sometimes under the name of John T. Ludeling and associates, at other times under the name of the Vicksburg, Shreveport and Texas Eailroad Company. They further allege that, by their repeated acknowledgments and deelarations, the defendants induced others, as well as your petitioners, to deal with them and accept their paper under the assurance that they were bound in solido, thereby assuming this responsibility toward third’ persons; that while the defendants were so associated together for the purpose aforesaid, they issued the promissory note sued on. They further allege that said John T. Ludeling was by the consent and authorization of the defendants authorized and empowered to execute said note,'for which they are bound in solido to petitioners, who acquired it for value before due. The prayer of the petition is for judgment in solido against the defendants for the amount of said note.

Defendants, in a peremptory exception, urged—

First — That the maker of the instrument, the Yicksburg, Shreveport and Texas Eailroad Company, a corporation created by, and according to law, is alone liable thereon, and not the individual stockholders, of whom defendants are only a portion.

Second — That defendants, if liable at all, are only jointly so with all the other stockholders of the company, who have not been sued, and whose names are disclosed in the exception.

The exception being overruled, defendants, reiterating the same defenses in their answer, further deny that the plaintiffs arc the legal owners or holders of the paper, and in good faith. They aver that Baker made a surrender in bankruptcy, and though this was not placed upon his schedule of assets, nor taken possession of by the assignee, E. E. Norton — yet, that it was legally the property of said assignee; that defendants had equities against said Baker, and plaintiffs held other collaterals for the debt of Mrs. Wilson, for whose debt to them the note sued on was delivered to them to secure. They set up the circumstance under which this paper was executed — as being when the purchasers of the railroad agreed among themselves to bid for the property, each of them paid into a common fund the sums they had agreed to furnish, respectively, with the agreement that whatever balances might remain after the purchase was complete the same should be loaned to the company for repair and construction purposes; that among the various balances was the sum of the paper sued on in favor of Baker, and all the other purchasers had similar papers executed for the balances respectively due them, which it was agreed among all should be held as simple memoranda of the agreement, and that purposely, and to prevent their use, none of these several instruments were stamped with the United States revenue stamps, necessary for the validity of a promissory note; and that the said note sued on is extinguished by compensation between the purchasers, who- hold similar obligations, in the event they, and not the Yicksburg, Shreveport and Texas Eailroad Company, are held liable, which however they deny.

W. J. Q. Baker intervened and claimed the ownership of the note in suit. The court gave judgment dismissing the intervention and condemning the defendants as- prayed for. The defendants and the intervention have appealed.

The defendants contend that, by their judicial admission in this case, the plaintiffs are estopped from denying their authorities to act under the charter of the Vicksburg, Shreveport and Texas Railroad Company and to execute the note sued on in the name of said corporation •, and therefore the defendants’ exception that the suit should have been brought against said corporation and not against them, the individual stockholders, should have been maintained and the suit dismissed.

The judicial admission relied on is the averment in plaintiffs’ petition that the “ said defendants and their associates on third February, 1866, purchased the Vicksburg, Shreveport and Texas Railroad at sheriff’s sale, with all its rights, privileges, franchises, locomotives, cars,” etc.

This is an admission that the defendants bought all the property of the corporation; but it is not a judicial admission that they became thereby the corporation itself, acquiring power to bind it by issuing obligations or notes of the kind in suif.

On the contrary, in other allegations of their petition, the plaintiffs aver that the defendants were operating said railroad merely as common carriers and commercial partners at the time they executed said notes; and it was for this reason that suit was brought against the defendants individually. The plaintiffs have not judicially admitted that the defendants, when they executed the note in the name of the Vicksburg, Shreveport and Texas Railroad, represented that corporation and had authority to execute the note in behalf thereof. The court did not err in overruling the exception to the form of the action. The note was executed by the defendants; it matters not what name they assumed for their firm or association. It was not the obligation of the insolvent corporation, the Vicksburg, Shreveport and Texas Railroad, whose property the defendants acquired at sheriffs sale on third February, 1866. They purchased the property of the juridical person, but not the being itself. The defendants contend that the plaintiffs are without interest and can not raise the question whether they represented the Vicksburg, Shreveport and Texas Railroad when they executed the note in suit. In pursuing the makers of the obligation the plaintiffs have an interest (when met by the objection that the note is not theirs but that of a certain railroad corporation), to deny that it was issued by such corporation, to deny that the defendants had authority to represent said corporation in issuing said note, and to show that they issued it merely as a firm or commercial partnership.

In order to make out their ease the plaintiffs clearly had the right to show that the defendants contracted the obligation as a firm or partnership and not as a railroad corporation, because they never had authority as such. In order to determine whether the equities set up by the defendants can be considered, it becomes important to ascertain whether the plaintiffs acquired it as owners or as pledgees before due and for value in due course of trade. They acquired it as pledgees before due, as will appear by the following document:

“ New Orleans, January 27, 1868.
“Received from W. J. Q. Baker a note of hand made by Eliza W. Warfield, dated May 3, 1867, for five thousand dollars, due and payable five years after date, bearing eight per cent, per annum interest, and said interest payable annually, paraphed ne varietur, June 3, 1867. Also a note signed by John T. Ludeling as President of the Vicksburg, and Texas Railroad Company, for five thousand and one hundred and sixty-eight dollars and eight cents, dated November 6, 1866, and payable on the third of February, 1869, to the order of Wesley J. Q. Baker and by him indorsed, said note drawing interest at eight per cent, per annum from the third day of February, 1866, until paid, interest payable annually; which notes are held as collateral security for the indebtedness of Mrs. N. J. Wilson, which indebtedness was contracted by the said W. J. Q. Baker. JOHN CHAFFE & BRO.”

The defendants contend that the debt for which the tote was given in pledge was suffered to prescribe; and with the prescription of the principal debt, the right of the plaintiffs as pledgees ceased, and the note belongs to the pledger Baker, or his assignee in bankruptcy, against whom the equities they set up can be established.

To this the reply is that the indebtedness of Mrs. Wilson is not prescribed, because before prescription had acquired she made a voluntary surrender of her property in bankruptcy, placing, plaintiffs on the schedule of her creditors for $10,000, and this was a most solemn acknowledgment and judicial admission of the debt; and since then prescription has not acquired.

The defendants contend that plaintiffs’ claim is described on the schedule of Mrs. Wilson as being evidenced by two promissory notes for $5000 each, dated twenty-seventh February, 1867, whereas their claim is an account; therefore the acknowledgment referred to did not arrest the current of prescription.

The plaintiffs were the factors of Mrs. Wilson and kept an account against her. The two notes referred to in the schedule are items in that account. Instead of acknowledging the "whole account, the'bankrupt chose to acknowledge two items thereof.

If all the other items of the account were incorrect, certainly in the most solemn manner she has judicially admitted the correctness of those items, the two notes of $5000 each ; and undoubtedly the current of prescription was arrested in regard to that part of the indebtedness of Mrs. Wilson to plaintiffs. And as long as there was an indebtedness or any part thereof, the pledge given by Baker remained in force.

The pledge was given to secure the indebtedness of Mrs. Wilson to plaintiffs, it matters not how evidenced ; and my conclusion is that it remains unimpaired and in full force. Besides, I am satisfied from the evidence that Baker transferred the note to plaintiffs in settlement of the debt for which it was pledged. The want of stamps on the note, if it be true it was not stamped, did not affect its negotiability or impair the pledge.

The time to raise that objection was when it was offered in evidence in this case, at which time it was properly stamped. The note having passed into plaintiffs’ hands before due, the equities set up by defendafits can not be considered.

The unincorporated association of which defendants were members, although engaged in carrying persons and freight tor hire on their railroad, was not a commercial partnership. It is only the carrying of personal property for hire in ships or other vessels by a partnership that makes it a commercial one. Revised Code, 2825. The defendants are therefore not bound in solido.

The judgment appealed from should therefore be amended so as to make the defendants jointly liable instead of solidarity.

For the foregoing reasons I concur in the decree rendered in this case.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 541.
    J. P. Shultz v. Joseph Morgan. John Chaffe & Brothers, Intervenors.
    Ifc is of the very essence of the elation cn paiement that delivery should actually be made.
    Neither a sale nor a eLation cn paiement can avail against an attaching creditor when there has been no delivery.
    In this instance the intervenors were fully aware of the indebtedness of the defendant to the plaintiff at the time the defendant became indebted to them, and of his failing and insolvent condition at that time; and under this state of facts they may well be considered as having aided the defendant in his fraudulent designs to defraud the plaintiff's-claim, first by tailing a mortgage from defendant on his property, and subsequently by transfers of that property only a few days before tlio plaintiff’s attachment was levied on the same property.
    APPEAL from the Eighteenth Judicial District Court, parish of Webster. Turner, J.

      Wathins & Tort, for plaintiff and appellee. A. B, George, for defendants and appellants.
   Taliaferro, J.

The plaintiff, being the holder of a promissory note for $1771 in gold coin with interest thereon from the eleventh May, 1870, at eight per cent., executed by the defendant, instituted this action against him, proceeding by attachment and garnishment process, alleging that the defendant was in insolvent circumstances and about to dispose of a large portion of his property to defraud his creditors and to give an undue preference to some of them. Certain lands with the rents accruing from them were attached and one Dubberty was cited as garnishee. The answers of the garnishee to interrogatories disclosed no indebtedness by him to the defendant. ■ Chaffe & Brothers intervened, claiming ownership of the lands attached. The case was tried twice in the courts below with the same result, that of a judgment in favor of the plaintiff against both the defendants and the intervenors; from which judgment the intervenors alone have appealed.

The defendant in 1870 became indebted to the intervenors in the sum of $5500, to secure the payment of which he mortgaged to them a portion of the lauds which the plaintiff in this suit attached for the payment of his debt. The mortgage was recorded in the parish of Bienville on the tenth of June, 1870, before the establishment of the parish of Webster; and as provision is made in the act creating the latter parish, rendering it unnecessary for any subsequent recordation in the new parish of deeds already recorded in the parishes from which portions of territory had been taken to form the parish of Webster, the objection of the plaintiff that the mortgage does not appear on the records of that parish is without weight.

The defendant, on the twelfth of August, 1872, sold to intervenors two hundred and thirty-nine and sixty-two one hundredth acres of land, the consideration of which, as expressed in the deéd, was the sum of $2800 cash in hand paid. This deed was recorded on August 14, 1872. On the day following, the thirteenth of August, 1872, the defendant sold to the intervenors four hundred and forty acres of land, more or less, for the consideration, as expressed in the deed of conveyance, of the sum of $2750 cash in hand paid. This deed was recorded on the same day it was executed. The attachment of the plaintiff was levied upon these lands on the twentieth of August, 1872, about seven or eight days alter the time of the sale to the intervenors. It is admitted that the consideration of both the transfers was indebtedness of defendant to the intervenors, and it is otherwise established that the consideration of both conveyances was the indebtedness of the defendant to the intervenors, and that no money was paid by them.

At the time the defendant contracted the debt for which he is now sued, he was pecuniarily.much embarrassed and his situation in this respect it (teems continued without any improvement up to the time this litigation commenced. The evidence makes it clear that at the time the intervenors obtained the mortgage and the titles they set up to the lands they knew the defendant was in failing and inec-lvout circumstances, and knew of the existence of the plaintiff’s claim again it the defendant, which had existed anterior to that of the intervenors.

It is admitted by the counsel of the intervenors that the vendor was not actually in possession as owner; that he did not live on either place; that both places were in possession of lessees; that the only delivery practicable was made. It is clear that no actual delivery of possession was made to the intervenors. They contend however that possession follows title by public act, as well in transfers by dation en paiement as in sales; that delivery followed title by the notarial act of sale to them by defendant, and that no further act of delivery was necessary; that the private act when recorded became authentic, and if possession did not follow title and vendee held precarious title, the only effect of the seizure was to force vendee to prove the reality and good faith of the contract. With these views we do not agree. It is of the very essence of the dation en paiement that delivery should actually be made. 3 M. 326, 269, and 12 La. 375.

In Nellson v. Smith, 12 La. 375, the case last referred to, it was held that neither a sale or a dation en paiement can avail against an attaching creditor when there has been no delivery. This doctrine is well settled. See 20 An. 282, White v. Bird, and 3 An. 280.

All the conditions required to enable a creditor to attach the property of his debtor who, unable to pay all his creditors, is aiming to give an undue preference to some of them to the injury of the others, meet in this case; the insolvency of the defendant at the time of his transfers of property to the intervenors, the existence of plaintiff’s debt at the time of these transfers, and the attempt of the defendant to defeat his collection of that debt or to participate in a distribution of his assets by passing title to all his property to the intervenors. That the intervenors were fully aware of the indebtedness of the defendant to the plaintiff at the time the defendant became indebted to them, and of his failing and insolvent condition at that time, is abundantly shown ; and under this state of facts they may well be considered as having aided the defendant in his fraudulent designs to defeat the plaintiff’s claim, first by taking a mortgage from defendant on his property and subsequently transfers of that property only a few days before the plaintiff’s attachment was levied on the same property.

The decree of the lower court was correctly rendered.

Judgment affirmed.


author: Wyly, J.

text:
    No. 589.
    Benjamin Jacobs et al. v. Benjamin Levy et al.
    3?or carrying on a private market in contravention of the ordinances of the city of Shreveport, the defendants may be responsible to said city on account thereof. But plaintiffs, who are lessees of the public markets, have no right to sue to enforce the ordinances of that political corporation, nor can the validity of said ordinances be tested in this controversy to which the city of Shreveport is not a party.
    APPEAL from the Tenth Judicial District Court, parish of Caddo, Looney, J.

      Boarmcm & Blstner, Duncan <& Moncure, Fuqua & Oalliham, for plaintiffs and appellees. J. W. Jones, Win. A. Seay, T. A. Flanagan, for defendants and appellants.
   Wyly, J.

Plaintiffs, who are the lessees of the public markets in the city of Shreveport, and who under their contract with the city “ have the exclusive right to collect all market dues within the present limits of Shreveport as per tariff now in force during the lease,” have brought this suit against the defendants, who are keepers of a private market, for $10,000 damages for keeping said market, and they sued out an injunction restraining them from pursuing said occupation.

No damages have been proved in this case, and the defendants have not refused to pay plaintiffs, when required, market dues as per tariff now in force. Since opening the private market, plaintiffs have not demanded of defendants market dues.

For carrying on a private market in contravention of the ordinances of the city of Shreveport, the defendants may be responsible to said city on account thereof. But plaintiffs have no.right to sue to enforce the ordinances of this political corporation. Nor can the validity of the said ordinances be tested in this controversy to which the city of Shreveport is not a party. Nor can the validity of the contract between the city of Shreveport and the plaintiffs and the extent of the rights of the latter thereunder be determined in this suit; because the city of Shreveport is not a party and defendants are strangers to said contract. If the ordinances prohibiting private markets be valid, defendants have no interest in contesting with plaintiffs in regard to the extent of their rights, resulting from their contracts with the city of Shreveport.

If said ordinances on the other hand be held invalid, still defendants are in no manner concerned in regard to the contracts between plaintiffs and the city of Shreveport. Therefore the only inquiry in relation to defendants’ right to keep a private market is, are the ordinances of the c;ty prohibiting it valid or invalid; and this question, as before remarked, can not be determined in this suit, because the city of Shreveport, the party whose rights and authority under the charter are questioned, is not before the court.

It is therefore ordered that the judgment herein be set aside, and it is decreed that the demand of plaintiffs be rejected with costs of both courts.

Rehearing refused.


text:
    No. 574.
    Benjamin Levy & Co. v. City of Shreveport et al.
    In order to present the question whether the mayor of the city of Shreveport had authority to arrest and flue the plaintiffs in this instance hut defendants in certain oases in which they were sued for carrying on a private market in contravention of the ordinances of said city, and the question being whether said ordinances are legal, the defendants should have appealed from the judgments imposing the penalty in said ordinances prescribed. They can not test the authority of the mayor to enforce the ordinances of the oity prohibiting private markets, and the legality of said ordinances, in a proceeding of this kind, to wit, by injunction and a olaim of damages.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      J. W. Jones, T. A. Flanagan, Wm. A. Seay, for plaintiffs and appellees. David M. OalKham, city attorney, J. W. Duncan, for defendants and appellants.
   Wyly, J.

Plaintiffs allege that they are engaged in carrying on a private market, for which they hare a license from the State; and they had applied for a city license and had been refused by the municipal authorities.

They further state that S. J. Ward, mayor of said city, on divers occasions in the month of February, 1875, wantonly, improperly and without authority in law, caused to be issued warrants, under which they were arrested and fined by the mayor twenty-five dollars in each case ; that, in the prosecution of their said business, they were in the exercise of a legal right, and the mayor was without jurisdiction or authority in having them arrested and fined.

The petition further states, that they have taken a suspensive appeal to the Supreme Court of the State, from the judgments and fines imposed upon them; yet, notwithstanding this, the mayor continues to have them arrested daily, and has declared his intention to fine them for each and every day they pursue their business as aforesaid.

They conclude by asking for a judgment in solido against the city, and S. J. Ward, individually and in his capacity of mayor, for the sum of one thousand dollars damages.

On these allegations writs of injunction issued as prayed for.

Defendants excepted to the action on the ground that the petition discloses no good cause .for the suit, and no proper showing is made for the issuance of the injunction. We think this exception should have been sustained. In order to present the question whether the mayor had authority to arrest and fine the defendants for carrying on a private market in contravention of the ordinances of th,e city of Shreveport, and the question whether said ordinances are legal, the defendants should have appealed from the judgments imposing the penalty in said ordinances prescribed. They can not test the authority of the mayor to enforce the ordinances of the city of Shreveport prohibiting private markets, and the legality of said ordinances, in a proceeding of this kind.

And they can not seriously demand damages for alleged illegal acts that may or may not hereafter be done by the mayor.

It is therefore ordered that the judgment herein be set aside, and it is decreed that plaintiffs’ suit be dismissed with costs of both courts.

Rehearing refused.


author: Morgan, J.

text:
    No. 593.
    James W. Howard v. C. Yale, Jr., & Co. Wimbush & Howell, Intervenors.
    Before the bond of tlie defendant and appellant was filed the plaintiff died. Subsequent to plaintiff’s death the required bond was filed.
    The motion of plaintiff’s representative to dismiss the appeal upon the ground that he is not properly before the court, can not prevail. Plaintiffs death did not interfere with defendant's rights. As soon as the bond was filed, the jurisdiction of this court attached. If the plaintiff has died since the appeal was granted, the proper parties will have to be made here.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Galliham, judge ad hoe, in lieu of district judge, recused.

      Land <& Taylor, for plaintiffs and appellees. O. W. Pegues, for defendants and appellants.
   Morgan, J.

Judgment was rendered against the defendants. Prom this judgment they moved, in open court, for an appeal, which was granted upon their furnishing bond as required by law.

Before the bond was filed, the plaintiff died. Subsequent to plaintiff’s death the required bond was filed.

Plaintiff’s representative no»w moves to dismiss the appeal upon the ground that he is not properly before the court.

We think he is. Defendants complied with the order of court by furnishing the bond required of them. They could not prevent the plaintiff from dying, nor did his death interfere with defendants’ rights. As soon as the bond was filed the jurisdiction of this court attached. If the plaintiff has died since the appeal was granted the proper parties will have to be made here.

The motion to dismiss is denied, and the case is continued to make parties.


text:
    No. 525.
    R. W. Rayne v. W. L. Ditto. Lazarus Mayer, Warrantor.
    The note sued upon was negotiable in form and was the maker’s unconditional promise to pay the amount stated therein. When plaintiff received it from Mayer, indorsed “without recourse” on him, he took it at his own risk, and the indorser is not liable because of the defense of Confederate money consideration successfully pleaded by the defendant. The note was given in novation, indorsed “without recourse,” and the indorser has not been notified of its dishonor by the maker. Even without this limitation in the indorsement, under the rules of commercial law, the indorser who has not been notified of non-payment at maturity can notjbe made liable.
    from the Twelfth Judicial District Court, parish of Catahoula. Taliaferro, J.

      Smith & Boatner, for plaintiff and appellant. J. T. Ellis, for defendant and appellee.
   Wyly, J.

Plaintiff, holding an account and notes, aggregating $748 63, against the commercial firm of Mayer & Levystein, accepted in novation thereof in 1867 the note of the defendant in favor of Lazarus Mayer for $600, payable sis months after date (-^fhich was August 13, 1866), said note being indorsed “ without recourse” by the payee.

When the defendant pleaded in bar of the present action that the consideration of said note was Confederate money, the plaintiff called Lazarus Mayer in warranty and prayed judgment against him for $748 63 in case it should be decided that the note in suit is invalid on account of its consideration. Mayer filed no answer to the call in warranty. The court finding the consideration of the note to be Confederate money rejected plaintiff’s demand against the deiendant and-refused the call in warranty, reserving, however, plaintiff’s rights-against Lazarus Mayer as warrantor to be hereafter asserted. Plaintiff appeals, and in this court he contends that Lazarus Mayer, notwithstanding the indorsement without recourse,” is liable as warrantor of the validity of the note.

The note was negotiable in form, and was the maker’s unconditional-promise to pay the amount stated therein; when plaintiff received it from Mayer indorsed “ without recourse” on him, we think he took it at his own risk and the indorser is not liable because of the defense-of Confederate money consideration successfully pleaded by the defendant. The note was given in novation, indorsed “ without recourse,” and the indorser has not been notified of its dishonor by the maker. Even without this limitation in the indorsement, under the rules of commercial law, the indorser who has not been notified of non-payment at maturity can not be made liable. The authorities cited by appellant are not applicable.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 572.
    State of Louisiana, ex rel. W. S. Haven, President, etc. v. The City of Shreveport.
    The municipal corporations of this State are permitted to subscribe for stock of railway companies on certain conditions. In this instance, no ordinance whatever, in compliance with those conditions, was passed by the City Council of Shreveport, but, on motion, the proposition of a certain railroad company, to have a vote of the people taken for a subscription to the stock of the company to the amount of three hundred thousand dollars, was referred to the Mayor with authority to order an election. This could not be done. Therefore the acts of the Mayor in the matter were unauthorized and illegal, and could not impose any duty or obligation on the officers of the municipal corporation.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.
    A. W. O. Hides, for plaintiff and appellee. D. M. Oalliham, Wm. A. Seay, and A, Boarman, for defendaut and appellant.
   Ludeling, C. J.

This is a proceeding by mandamus, to compel certain officers of the corporation of Shreveport to perform a ministerial duty, to wit: The collection of contributions subscribed to a railroad company. Quite .a number of questions have been discussed orally and by briefs, which, however, we do not consider involved in this case. The only question pertinent in this suit is, whether or not the acts asked to be done are ministerial duties of said officers ?

The answer to their question will be found in the following narrative. On the tenth of March, 1874, the railroad company proposed to the City Council to have a vote of the people taken for or against subscription to the stock of the company, to the amount of $300,000. On the same day the following ordinance was adopted by the council: “A petition from Great Western Railroad Company, asking for vote of the people for or against a subscription of $300,000. Stock was, on motion, referred to the Mayor, with authority to order an election.”

It is manifest the only action by the Council in this matter was to refer it to the Mayor. The Council did nothing more than to attempt to delegate its authority in the matter to the Mayor. This it could not do. The law declares that “It shall be lawful for the police juries and municipal corporations of this State to subscribe to the stock of corporations undertaking works of internal improvements, under the laws of the State, on complying with the provisions hereinafter set forth. All ordinances passed for such subscriptions shall contain the following provisions, to wit: a statement of the number and amount of shares proposed to be subscribed; second, the levy of a tax on the landed estate, situated in the parish or municipal corporation, sufficient to pay the amount of the subscription, and specifying the rate of taxation, and the time when it shall be payable.” R. S. sec. 711 and 712.

These are the conditions upon which the municipal corporations are permitted to subscribe for stock of railway companies.

In this case no ordidance whatever was passed, but on motion the proposition of the railroad company was referred to the Mayor." His acts in the matter were unauthorized and illegal, and could not impose any duty or obligation' on the officers of the municipal corporation.

It is therefore ordered that the judgment of the lower court be annulled, and that the demand of the relator be rejected, with costs in both courts.

Rehearing refused.


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    No. 535.
    Thomas S. Wells v. Annie Alexander & Husband.
    The sale from some of the heirs to a co-heir could not deprive the executor of his commissions. It was a charge due hy the whole estate, and where -the whole of the estate passed hy contract to one of the co-heirs, the whole of the charges were due to the extent of the estate by the co-heirs who purchased. There was no want of consideration for the note given by the defendant for the amount of commissions. The succession having merged in her she owed the debt.
    The plea of res judicata, is not well taken. It seems to rest upon the judgment homologating the executor’s account. It is conclusive, it is true, as to the amount due, but it is no reason why the plaintiff should lose his judgment for said amount.
    APPEAL from the Fourteenth. Judicial District Court, parish of Morehouse. Bay, J.

      James Bussey, for plaintiff and appellee. T. G. Barsons, for defendant and appellant.
   Morgan, J.

F. Wells died leaving a will of which the plaintiff was one of the creditors. The defendant was an heir for one-third of the succession. The succession was administered upon. The executors filed their account. It was homologated and made the judgment of the court. They were placed on the account for the amount of their commissions, $910 30 each.

After the homologation of the account the defendant purchased from her co-heirs their interest in the succession which they had inherited. She then gave to plaintiff her note for the amount due him for his commissions. The note was not paid, and he seeks to recover the amount.

The defense is error and want of consideration. The commissions allowed the plaintiff was a charge against the estate. The sale of some of the heirs to a co-heir could not deprive the executor of his commissions. It was a charge due by the whole estate, and when the whole of the estate passed, by contract to one of the co-heirs, the whole of the charges were due to the extent of the estate by the eoheir who purchased. Plaintiff had the right to claim immediate payment. Because he gave time it does not follow that he should not receive what the law and the court allowed him. There was no error on the part of the defendant when she gave the note, for she knew what she was doing. There was no want of consideration, for the succession having merged in her she owed the debt.

The plea of res judicata is not well taken. It seems to rest upon the judgment homologating the executor’s account. It is, as claimed by defendant, conclusive as to the amount due. But this is a reason why it should be paid by the person who has become liable therefor; it is no reason why the plaintiff should lose his judgment.

We agree with the plaintiff that this appeal was prosecuted for delay.

It is therefore ordered that the judgment of the district court be affirmed, with ten per cent interest for a frivolous appeal.


text:
    No. 551.
    J. Buntin et al. v. E. M. Johnson.
    The motion to dismiss the appeal taken by plaintiffs can not prevail. To have filed in the parish court a petition similar to the one now under consideration after an appeal was granted from a judgment of the district court declaring that it had no jurisdiction, is not such an acquiescence in the judgment as will prevent an appeal.
    The acquiescence which prohibits an appeal or destroys it when taken, is the acquiescence in a decree commanding something to be done or given. If the thing commanded to be done or given, is done or given, the j udgment is acquiesced in. Here nothing was ordered to be done. The judgment of the district court was simply that it had no jurisdiction. It did not order plaintiffs to institute proceedings in the parish court.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Ray, J.

      Todd & Brigham, for plaintiffs and appellees. Newton & Hall, for defendant and appellant.
   Morgan, J.

Petitioners aver that they are the legal heirs of Rebecca Johnson, deceased; that she left property to a considerable amount; that immediately after her death the defendant took possession of her estate, he claiming to be her universal legatee under a pretended will, of which he caused himself to be appointed executor. This will, they aver, is null and void. They pray to be decreed the owners of the property left by the decedent, and that the pretended will be set aside and annulled. The suit was instituted in the district court. The defendants excepted to the jurisdiction of that court. The exception was maintained. A motion is made to dismiss the appeal. The ground relied upon is, that after the appeal was granted they filed a petition, similar to the one now under consideration, in the parish court. This, they contend, is an acquiescence in the judgment. They claim that from a judgment acquiesced in no appeal will lie.

This is true. But the acquiescence which prohibits an appeal, or which destroys an appeal when taken, is the acquiescence in a decree which commands something to be done or given. If the thing commanded to be done or given, is done or given, the judgment is acquiesced in. It is a confession that the judgment is correct, and one can not admit that a judgment is correct and then appeal from it. Here nothing was ordered to be done. The judgment of the district court was simply that it had.no jurisdiction. It did not order them to institute proceedings in the parish court. The motion to dismiss is overruled.

On the Merits.

The case is identical with and is controlled by the case of Eachal, Tutor v. Eachal and Husband, 1 E. 116, and the cases therein referred to.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed; that the exception to the jurisdiction of the district court be dismissed, and that the case be remanded to be proceeded in according to law, defendants to pay the costs of appeal.


text:
    No. 596.
    Daniel Buckmaster v. E. & B. Jacobs.
    The parol testimony objected to was not inadmissible. The purpose of its introduction was not to contradict or vary the purport of a written instrument, but to establish an important allegation in the plaintiffs petition that, subsequent to entering into the written agreement, he had, at the special instance and request of defendants, supplied a considerable amount of labor and material appropriated to the erection of certain buildings in addition to that specified in the written act.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, for plaintiff and appellee. Land & Taylor, for defendants and appellants.
   Taliaferro, J.

The plaintiff sues upon an account for labor done and material furnished in the construction of a house for the defendants on lot No. 6 in block No. 59 in the city of Shreveport. He claims a balance due him on his account of $1196 61, with.interest thereon from judicial demand, and a lien and privilege on the house to secure the payment of his account. He avers that a considerable portion of the labor done and material furnished by him was under contract with defendants who have the contract in their possession and refuse to deliver it or a copy to him; that a considerable portion of labor and material supplied by him in the erection of the building was furnished outside of and over and above that stipulated in the contract.

The defendants deny owing the plaintiff any balance due for his labor and supply of material; that through error caused by him they have overpaid him-$772 93, and pray that they have judgment against him for that amount.

The piaintiff had judgment for $716 71 with five per cent, interest thereon from the second of April, 1874, with recognition of the lien claimed. The defendants have appealed.

A bill of exceptions was taken to the admission of testimony to show—

First — The usual custom among brick masons in measuring brick walls to ascertain the number of bricks they¡contain.

Second — The usual and customary price per thousand for laying brick in walls above sixty feet high.

Third — -The meaning among brick masons^of the phrase “brick laid and actually counted.”

Fourth — That the plan of defendants’ building was changed subsequently to the written contract between the parties ; and that the wall was raised seven or eight feet higher than the original plan called for. The objections were that there was a written contract between the parties filed in evidence by plaintiff and parol evidence was inadmissible to extend, change, alter, contradict or vary the meaning of the written act; that the written act showed the price defendants agreed to pay for every thousand brick laid; that the number of bricks put in the building were to be ascertained by actual count and not by cubic or other measure or estimate; that neither can plaintiff prove by parol the meaning of the phrase “brick laid and actually counted,” the phrase not containing words of technical meaning or of ambiguous import.

We do not regard the testimony as inadmissible. The purpose of its introduction was not to contradict or vary the purport of the written instrument but to establish an important allegation in the plaintiff’s petition, that subsequent to entering into the written agreement, he had at the special instance and request of defendants supplied a considerable amount of labor and material appropriated to the erection of the building, in addition to that specified in the written act. It was competent for him to establish by parol that, during the progress of the work, modifications in the plan were agreed upon by the parties; to show that the walls were raised higher than contemplated, and to show the customary charge for building these portions of walls that are raised above the height of sixty feet; no agreement having been entered into as to the costs of building walls above that elevation because the original agreement did not contemplate a greater height than sixty feet. The objection to showing the usual acceptance of the purport of the words “brick laid and actually counted” is without weight. In point of fact the actual counting of brick in a wall is impracticable after the wall is completed. Some method or rule of computation must be resorted to, and it is competent to show the rule or method of computation in general use.

This case depends for its solution exclusively on questions of fact, and after a careful review of the evidence we conclude that it preponderates in favor of the plaintiff, and that the judgment of the lower court was correctly rendered.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Rehearing refused.


author: WyXjY, J.

text:
    No. 000.
    William Sandel v. D. B. Douglass, Sheriff et als.
    Plaintiff was the lessee of the plantation seized by these defendants as the property of one Mrs. Bell, the defendant in execution; and being the lessee, he was the owner of the seventy-seven bales of cotton raised by him on said plantation in 1869, which were seized and disposed of by defendants. That he was the lessee in 1868, can not be doubted. • "Whether the husband of Mrs. Boll had authority as agent to execute to him the lease for 1869, is immaterial, inasmuch as he remained on the place after the expiration of-the lease of 1868, and continued to cultivate with his own means the plantation in 1869. The lease was continued by tacit consent.
    That plaintiff signed the injunction bond as security for Mrs. Bell, when she resisted the execution of defendants’ judgments, does not estop him from claiming to be the owner of the twenty-seven halos of cotton involved in this Gontxoversy. There the ownership of the cotton was not at issue, the right of defendants to execute their judgments against Mrs. Boll being then the subject of inquiry.
    The mere seizure of the mortgage property in June, 1869, did not divest plaintiff of the title to the crop which he was raising on the plantation leased for 1869. That seizure in no manner disturbed him in cultivating the place. It was after plaintiff had shipped from the place sixty bales of cotton, and was about shipping the twenty-seven bales in dispute that defendants made the seizure and disposition of the cotton.
    If the plantation had been sold by the sheriff pending the lease, under the mortgage previously executed, containing the non aliena/ndo clause, the sale would have dissolved the lease, and the purchaser could have taken possession. But it was not so. Under the circumstances of the case, the seizure of the cotton which belonged to plaintiff and the disposition of it was unjustifiable and wrong.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Bobert J. Oald/well, attorney at law, selected to try this case. Jury trial. Bewton á Hall, for plaintiff and appellant. Todd é Brigham, for defendants and appellees.
   WyXjY, J.

This case was before this court in 1873, and was remanded for the purpose of allowing the intervenor, Mrs. S. A. Bell, an opportunity for serving citation, and putting her intervention at issue. The case is reported in 25 An. 566, to which reference is made for a statement of the' case.

At the trial on the remandment, her intervention was dismissed and the demand of the intervenor, Cooper, was rejected. As neither of these intervenors have appealed, their pretensions will not be noticed, the controversy ■ between the plaintiff and defendants being the only one to determine in this appeal.

We find from the evidence that plaintiff was the lessee of the plantation seized by defendants as the property of Mrs. S. A. Bell, the defendant in execution, and being lessee he was the owner of the twenty-seven bales raised on said plantation in 1869, which were seized and disposed of by defendants, and on account of which this litigation arises. That plaintiff was the lessee of the plantation in 1868 can not be doubted. Whether the husband of Mrs. Bell had authority as agent to execute to him the lease for 1869, is immaterial; he remained on the place after the expiration of the lease of 1868, and continued to cultivate the plantation in 1869. The lease was renewed by tacit consent. Revised Code 2688.

That plaintiff signed the injunction bond as security for Mrs. Bell when she resisted the execution of defendants’ judgments, does not estop plaintiff from claiming to be the owner of the twenty-seven bales of cotton involved in this controversy. There the ownership of this cotton was not at issue, the right of defendants to execute their judgments against Mrs. Bell was the subject of inquiry.

Although the plantation was seized under the judgments of defendants in June, 1869, as the property of Mrs. Bell, it was not sold till 1873, long after the lease to plaintiff had expired. The mere seizure of the mortgage property in June 1869, did not divest plaintiff of the title to the crop which he was raising on said plantation leased for 1869. The seizure in no manner disturbed him in cultivating the. place. Neither the sheriff nor his codefendants advanced any supplies, paid the laborers, nor did they in auy manner contribute to the raising and gathering of the crop. It was after plaintiff had shipped from the place sixty bales of cotton, and was about to ship the twenty-seven bales in dispute that defendants made the seizure and disposition of this cotton.

If the plantation had been sold by the sheriff pending the lease under the mortgage previously executed containing the nonalienation clause, the sale would have dissolved the lease and the purchaser could have taken possession. But here, pending the seizure, the lessee is not disturbed in cultivating his crop, and after the cotton is ginned and baled ready for market — a movable belonging to the lessee — it is seized by the defendants, taken from the possession of the owner, and shipped and disposed of by the defendants, Silbernagle & Co. We think the cotton belonged to plaintiff, and the seizure and disposition of it by the defendants was unjustifiable and wrong. Richardson v. Dinkgrave, sheriff, et al. 26 An. 632. The value of the property we fix, from the evidence, at $2700. The damages, including attorney’s fees, we fix at $500.

It is therefore ordered that the judgment appealed from in favor of defendants be annulled, and it is decreed that plaintiff recover of defendants in solido thirty-two hundred dollars, with legal interest thereon from judicial demand, and costs of both courts.

Rehearing refused.


text:
    No. 563.
    Martha J. Sorrels and Husband v. James M. Stamper.
    After a mortgage lias once perempted, it can not Tie reversed against a succession by tlie registry thereof after the lapse of ten years. Ko preference over ordinary creditors of a succession can be gained in that way.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      B. J. Caldwell, judge ad hoe, in lieu of district judge Bay, recused. Morrison '& Farmer, for plaintiff and appellant. B. W.- & B. Biohardson, for defendant and appellee.
   Morgan, J.

In December, 1866, plaintiff brought this suit in the district court, parish of Ouachita, to forecjose via ordinaria a mortgage note for $2355.

In May, 1869, it was transferred to the parish court and judgment was rendered on said note against the defendant, and the mortgage note was rendered executory.

Under this foreclosure of mortgage the land was sold and plaintiff bought it for $1600, paying the costs and retaining the price in satisfaction of her execution. In the meantime suit had been brought in the parish court to annul the judgment, because the court which rendered it was without -jurisdiction ratíone materias, and the judgment annulling it was rendered nine days after the said sale.

After considerable delay the plaintiff began to press her original suit in the district court to foreclose the mortgage, and the defendant, in bar of the action, pleaded the prescription of five years; also the peremption of the mortgage was pleaded. This was on eighteenth December, 1874. At the trial, on twenty-ninth March, 1875, the court rejected the plea of prescription as to the note, and gave plaintiff a personal judgment against the succession of the defendant, who had died, subsequent to tbe institution of this suit. The demand on the mortgage was rejected on the ground that it had not been reinscribed within ten years, and the reinscription thereof against the succession, which was made three years after the peremption, could not revive the mortgage against the succession of defendant.

The court also held that the proceedings, judgment and sale of the parish court had and obtained on this mortgage note for $2355, were all absolute nullities, because that court was without jurisdiction ratione mater-ice, the matter in dispute exceeding $500.

As the defendant only has appealed, the inquiry is limited to the correctness of the ruling of the learned judge who tried this case in regard to the mortgage set up by plaintiff. We think his conclusion that, after a mortgage has once perempted, it can not be revived against a succession by the registry thereof after the lapse of ten years, is entirely correct. No preference over ordinary creditors of a succession can be gained in that way. He also was right in holding that the judgment of the parish court and all proceedings thereunder in attempting to enforce this mortgage note for $2355, were absolute nullities, that court being without jurisdiction rations materlce.

The judgment appealed from is undoubtedly correct.

Judgment affirmed.


text:
    No. 590.
    Wallace & Co. v. Cumming & Morrison.
    Creditors may become parties to an assignment in other ways than by actually signing the instrument, as by coming in under it for the purpose of obtaining a dividend. In this instance the plaintiffs were informed of the terms and conditions on which the defendants had assigned their property to their creditors, and they accepted their ¿pro mta from the assignee without reservation, and thereby made themselves parties to the agreement. They ought not to be permitted to enjoy the benefit of a compromise, and at the same time repudiate all its obligations.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      T. Alexander, A. & W. Voorldes, for plaintiffs and appellants. Butt & Leonard, for defendants and appellees.
   Ludeling, C. J.

The plaintiffs sue on a note and an account. The defense is, that being in failing circumstances, the defendants called a • meeting of their creditors, and with the assent of said creditors, assigned to them all the property and assets of said defendants, which were sold and collected and the proceeds thereof were distributed pro rata among the creditors, and that the agreement was that such assignment should fully release defendants from all their liabilities. The plaintiffs rely upon the fact that they did not sign the agreement. This is true; but they were informed of its terms and conditions, and they accepted their pro rata from the assignee, without reservation, and thereby made themselves parties to the agreement. “ Creditors may become parties to an assignment in other ways than-by actually signing the instrument, as by coming in under it for the purpose of obtaining a dividend.” “By becoming a party to an assignment a creditor entitles himself to the full benefit of the provision made by it in his behalf, while on the other hand he frequently surrenders rights, on which he might otherwise insist.”' Burwell on Assignments 217; 7 How'. 276.

The plaintiffs ought not to be permitted to enjoy the benefit of a compromise and at the same time repudiate its obligations.

It is ordered that the judgment of the lower court be affirmed, with costs of appeal.


author: Ludeling, C. J:

text:
    No. 566.
    John Davis v. William C. Madden.
    Tlie objection that tbo special commissioner named in tbe commission did not execute it, because be annexed to bis signature “commissioner for tbe State of Louisiana,” and did not affix tbe seal of bis office, is frivolous. Tbe person named as special commissioner executed tbe commission, and tbe addition of bis title, if be be a commissioner for tbe State, did not vitiate bis acts.
    Tbe judge a quo erred in refusing to receive evidence on tbe reconventionsl demand set up in tbe amended answer of defendant. That demand was sufficiently set forth. If tbe plaintiif bad needed tbe particulars be mentions to enable bim to make bis defense against defendant’s demand in reconvention, be -should have required defendant to state with more accuracy bis demand. As it is, tbe plaintiff appears to have been sufficiently notified of tbe demand against bim for all practical purposes.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. 1lay, J.

      H. W. Biehardson, for plaintiff and appellee. Newton & Hall, for defendant and appellant.
   Ludeling, C. J:

This is a suit for a promissory note for $7012. The defense is that the note was given without any consideration, and the defendant pleads in reconvention an account for $14,300 75.

On the trial evidence was introduced to show that the note was made by defendant to enable the plaintiff to raise money on it by discounting it in bank, in order that the plaintiff might buy horses, mules and cattle, to be sold by deiendant in Louisiana for the joint profit of both, and that as between them there was no consideration for the note. To this effect the defendant swears, and he is to some extent corroborated by his brother and one other witness, who testify as to what plaintiff told them about a due note put in bank by him. On the contrary, the plaintiff swears that the note was given for a debt due by defendant after a settlement of their affairs up to that date. He is corroborated by the note itself. It reads as follows:

“Lexington, Ky., April 17,1871.
“$7012.
“One day after date I promise to pay to John Davis seventy hundred and twelve dollars, for value received of him.
“WM. C. MADDEN.”

It is evident that such a note, not negotiable in form and due one day after date, was not intended to be used in bank. Nor does it appear to have been so used — but that it has remained in the possession of plaintiff, who at different times indorsed credits on the note, which he swears were placed there in the presence of the defendant. There are other circumstances which make us adopt the conclusion of the district judge, that the want of consideration was not proved.

The objection that the special commissioner named in the commission did not execute it, because he annexed to his signature “ Commissioner for the State of Louisiana,” and did not affix the seal of his office, is frivolous. The person named as special commissioner executed the commission, and the addition of his title, if he be a commissioner for the State, could not vitiate his acts.

The plaintiff objected to the reception of any evidence on the reconventional demand. In the original answer the reconventional demand is based upon an itomized account, which it is alleged is made a part of the-answer, but which, in fact, was not attached to the answer, nor filed, until the trial, when it was objected to. In the meantime an amended answer had been filed to which was annexed an account. This was objected to as too vague and indefinite to enable the plaintiff to meet the issues presented. The account annexed to the amended answer is as follows:

“John Davis To W. C. Madden, Dr.
“1870.
“To amount remitted to Lexington City National Bank____$1,323 73
“ To Check on New York................................ $979 08 “1871.
“To cash............................................... 353 26
“ To check on New York, yr. favor........................ 1,620 00
“ To cash handed you.................................... 900 00
“$5,176 59”

The plaintiff urges that of the two dates given, 1870 and 1871, one was before and the other may have been before the date of the note j and that the month is not given to any of the items, nor the name of the drawer of the check, nor the name of the bank on which it was drawn. These objections were sustained by the judge a quo,' and defendant excepted. We think the judge erred in refusing to receive evidence on the reconventional demand set up in the amended answer. ■The evidence shows that the plaintiff and defendant were doing business together in 1870 and 1871; the plaintiff bought stock in Kentucky, shipped them to Louisiana to defendant, who was to sell them, and after deducting their costs, the net profits were to be divided between them. Prom the nature of the business it is not to be expected that regular books were kept of their accounts, or that the remittances of the character mentioned in the amended answer were so numerous, as to make it necessary that a more particular description of them should have been made, in order to give plaintiff notice of the demand in reconvention. We think it quite certain that if the remittances were made as alleged, the plaintiff was as fully informed, by the account annexed, as if the day and month had been stated, and the names of the drawers of the checks had been given. Besides, if the plaintiff had needed those particulars to enable him to make his defense against said demand, he should have required the defendant to state with more accuracy his demand in reconvention. Pleadings, it is true, as alleged by plaintiff’s counsel, are intended to give notice of the demands to litigants. ■ We think the plaintiff was sufficiently notified of the demand against him for all practical purposes; and we believe that the ends of justice will be subserved by remanding this case to the court a qua to try the reconventional demand.

It is therefore ordered that the judgment of the lower court be annulled, and that the case be remauded to be tried according to the views herein expressed, appellee to pay costs of this appeal.


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    No. 577.
    Julia Williams and Husband v. J. W. Fuller.
    This is a suit in injunction prohibiting defendant from suing plaintiff, or foreclosing his mortgage as vendor, and praying for the rescission of the sale of a tract of land, on the ground of defective title.
    The plaintiff has failed to set forth a cause of action in her petition. It has been settled that the surviving husband, the head of the community, may sell community property after the death of his wife. The title of the property, in this instance, stands in the defendant’s name on the records of the parish where the property is situated, and he is personally bound for the debts of the community. Besides, plaintiff is not disturbed in her possession, or threatened with eviction.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Fuqua & OalUhani, for plaintiff and appellant. A. W. O. Hides, for defendant and appellee.
   Ludeling, C. J.

The defendant sold by public act to plaintiff a tract of land, and retains a vendor’s privilege and a mortgage to secure tlie credit portion of the price. Before the maturity of the last note, the plaintiff injoined the defendant from suing her or foreclosing his mortgage, and in the same suit prayed for the rescission of the sale, on the grounds substantially that the property belonged to the community of R.. T. Buckner and his wife, and that after the death of Buckner’s wife, he could not sell the property, as he had a child, a minor, who owned an undivided half of the community property. The defendant moved to dissolve the injunction on the face of the papers, and afterward alleged in his answer that' the suit was premature; that she had not tendered him a title of the property, and that she was in the undisturbed possession of the property, etc.

There was judgment in favor of the defendant and plaintiff appealed.

The plaintiff fails to set forth a cause of action in her petition. It has been decided by this court that the surviving husband, the head of the community, may sell community property, after the death of his wife. The title of the property stands in Ms name on the records of the parish where the property is situated, and he is personally bound for the debts of the community. Besides, she is not disturbed in her possession or threatened with eviction. 26 An. 219; 17 La. 27; 2 An. 460; C. C. 2560.

It is therefore ordered that the judgment appealed from be affirmed, with costs of appeal. It is further ordered that the defendant’s rights to sue for damages for wrongfully suing out the injunction be reserved.


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    No. 597.
    J. W. Fuller v. A. H. Leonard.
    The defendant was bound as accepter. No notice of protest was necessary to fix nis liability either as surety or accepter. A loan of money was made by plaintiff to Sturgess, and tlie draft of Sturgess for that amount was drawn upon and accepted by Leonard to enable Sturgess to get the money he wanted from plaintiff, who, to the defendant’s knowledge, would not have loaned the money without security, and who rested upon the defendant’s acceptance as securing the amount loaned to Sturgess. Under no aspect of the case can there be any weight in the defense.
    APPEAL from the Teuth Judicial District Court, parish of Caddo. Duncan, Special Judge.

      Egan & Wise, for plaintiff and appellee. Nutt & Leonard, for defendant and appellant.
   Taliaferro, J.

The defendant is sued on a draft accepted by him, drawn by E. M. Sturgess to his own order for the sum of $1250, payable thirty days after date. The defendant excepted to plaintiff’s action on the ground that he is not the owner of the instrument sued upon, no indorsement appearing upon the draft passing the legal title, which exception, being overruled, the defendant answered that he signed the draft as accommodation accepter; that to the knowledge of plaintiff Sturgess never had any funds in the hands of defendant, and that he was never indebted to him in any amount. He further pleads that if he had at any time been liable on his acceptance he was released by the plaintiff’s laches iñ granting indulgence and time to Sturgess, the principal debtor, and failing to have the draft protested at maturity, and to give notice to the defendant; and also by failing to make demand on Sturgess, the principal debtor. Judgment was rendered in favor of the plaintiff for the amount claimed, and the defendant appealed.

The defense is without much weight. The defendant, as accepter, was primarily bound; no notice of protest was necessary to ñx his liability either as surety or accepter. The testimony shows that a loan of money was made by Puller to Sturgess, and that this draft was drawn upon and accepted by Leonard to enable Sturgess to get the money he wanted from Puller, who, to the defendant’s knowledge, would not have loaned the money without security, and that he rested upon the defendant’s acceptance as securing the amount loaned to Sturgess. Under no aspect of the case could the defense be availing.

It is therefore ordered that the judgment of the lower court be affirmed with costs.

Eehearing refused.


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    No. 573.
    City of Shreveport v. Mary M. Maples and Husband—City of Shreveport v. F. P. Stubbs—Consolidated.
    Tlie contract for macadamizing Commerce street in tlie city of Shreveport was awarded, to tlie undertaker on the third oí May, 1871, and the assessment to pay for tlie work was ordered on the eighth of that month. These acts were done under the authority conferred by the act of the Legislature of March 9, 1869.
    But the law establishing the new charter of the city of Shreveport was approved by the Governor on the twenty-seventh of April, 1871, and went into effect from and after its passage. The council deriving its powers from the act of 1869, in virtue of the constitutional provision on that subject recognized by the 21st section of the new charter, held over and remained in office until the organization of the new council to be appointed under the new charter; but it. was from and after tbe passage of tbo act of twenty-seventh April, shorn of the powers it previously possessed under the law of 1869. Brom and after the passage of the act of twenty-seventh April, 1871, it could only exercise the powers granted under that act, and these did not authorize the contract and assessment made in May, 1871.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Pegues, judge ad hoe, .in lieu of Looney, district judge, recused.

      D. If. OalKham, city attorney, for plaintiff and appellant. If. O. Blanchard, Wm. A. Seay, for defendants and appellees.
   Taliaferro, J.

Each of the defendants is sued for a pro rata amount of tax claimed by the plaintiff to be owing by them under the provisions of an ordinance of the city of Shreveport providing for the grading and macadamizing of Commerce street. A tax for this purpose was levied sometime in the year 1871, under an act of the Legislature, approved March, 1869, providing for the improvement of the streets, etc., of said city. The plaintiff alleges that the work has been done under contracts properly entered into, and claims a lien and special privilege on the lots of the defendants in front of which these improvements have been made, as security for the payment of the defendants’ shares of the tax imposed for the purposes aforesaid.

The defense is, that at the time this special tax was levied and the contract awarded, the present charter of the city of Shreveport (that of 1871) had become operative; and further, that the charter of 1871 abrogated act No. 109 of the Legislature, approved March 9, 1869, under which the city was authorized to levy the tax, a pro rata of which is claimed from the defendants.

There was judgment in the court below in favor of the defendants and the plaintiff has appealed.

The controversy is to be decided by determining the state of facts that exist as to the date at which the act establishing the charter of 1871 went into operation. The charter of 1871 was approved by the Governor on the twenty-seventh April, 1871. The act went into effect as defendants contend, from and after its passage, and that it repealed all laws or parts of laws in conflict with it. The act contains that provision ; but the last clause of the 21 st section of the act, the plaintiff contends, controls that provision as to the time of its taking effect. That clause provides that “upon the organization of the council of the city of Shreveport as provided for in this act all the rights, powers, privileges and immunities possessed and enjoyed by the mayor and city of Shreveport, as at present constituted, should cease and terminate and be vested in the city of Shreveport as established by this act.” We find frpm the record that the council appointed under the new charter met first for the purpose of organization on the twenty-seventh of May, 1871. No authority was exercised by that council under the new charter prior to that time. Some delay seems to have occurred after the passage of the act creating the new municipal government in the matter of appointing the officers by the Governor. It is shown that the contract for macadamizing Commerce street was awarded to the undertakers on the third of May, 1871, and that the assessment to pay for the work was ordered on the eighth of that month. These acts were done under the authority conferred by the act of the Legislature of March 9, 1869. The power to impose special taxes upon front proprietors for the improvement of streets lying in front of their property, the defendants do not' deny to have existed under the act just referred to.

The defendants contend that the charter of 1871 forbids the council from enforcing the collection of special taxes on front proprietors for the purpose of defraying the expense of improving streets in front of their property; that there is an inconsistency in this respect between the provisions of the two acts, and therefore that the act of 1869 is repealed; while on the other hand it is held that the mode prescribed by the new act (that of 1871, section 17), for improving and paving the streets and the method of providing for the payment for such work is not exclusive, and does not prohibit the municipal authorities from adopting any other mode recognized and permitted by existing laws, leaving the matter within the discretion of the council to adopt the mode pursued by council acting under the law of 1869, or not, as in its judgment the public interests may require, and that nothing forbids it from exercising the general power conferred by the 10th section of the new charter or that specially given by the act of 1869.

We are inclined to adopt the views of this subject presented on the part of the defendants, and conclude that at the time the contract was entered into by the council then acting (May 3, 1871) for work on Commerce street, and the assessment made on the eighth of that month to pay for it, the power or authority therebefore existing under the act of 1869, to sanction such action of the council was abrogated and did not exist; because the act establishing the new charter was approved by the Governor as we have seen on the twenty-seventh of April, 1871, and went into effect from and after its passage. The council deriving its powers from the act of 1869, in virtue of the constitutional provision on that subject, recognized by the 21st section of the new charter, held over and remained in office until the organization of the new council to be appointed under the new charter; but it was from and after the passage of the act of twenty-seventh April shorn of the powers it previously possessed under the law of 1869. From and after the passage of the act of twenty-seventh April, 1871, it could only exercise the powers granted under that act, and these do not authorize the contract and assessment made in May, 1871.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


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    No. 591.
    J. J. L. Goodman v. J. J. Rayburn, Executor.
    This is a suit against an estate on an account made out against Joseph Howell, a deceased person. The plaintiff, hy his own testimony and by that of another, offered to prove Howell’s acknowledgment that he owed the debt and that ho promised to pay it. This testimony was objected to by defendant, on the ground that such acknowledgment could only be established by v ritten evidence. The judge a quo erred in receiving such testimony; neither was it competent for plaintiff to prove by parol the credits or payments alleged to have been made on the indebtedness.
    The allegations that certain items of the account sued on were property belonging to plaintiff and sold by Howell, who retained the proceeds without accounting for them, were attempted to be sustained not by any written evidence, but by the parol evidence of the plaintiff and of an absent party who, by the admission of defendant’s eonnsel, would swear, if present, that Howell acknowledged the correctness of the account. This testimony should have been excluded.
    Where an account is not shown to he a stated account, and is to be regarded as an open one, it is prescribed by three years.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nxitt & Leonard, for plaintiff, and appellee. Lf. O. Blanchard, for defendant and appellant.
   Taliaferro, J.

Suit is brought in this case upon an open account, showing a balance due of $2113 96, for which judgment is prayed with legal interest. The answer is a general denial and plea of prescription of one, two and three years. The plaintiff had judgment in his favor and defendant appealed.

This is a suit against an estate ,• the account is made out against the estate of Joseph Howell, a deceased person. The plaintiff, by his own testimony and that of another, offered to prove Howell’s acknowledgment that he owed the debt, and that be promised to pay it. This testimony was objected to by the defendant on the- ground that such acknowledgment could only be established by written evidence, but the parol proof being received the defendant reserved a bill of exceptions. We think the testimony should have been rejected. Acts of 1858, 158; C. C. 2278; 26 An. 514; 25 An. 492; 24 An. 496. Neither was it competent for plaintiff to prove by parol the credits or payments alledged to have been made on the indebtedness claimed. 21 An. 350; 23 An. 531, 549.

Two items of the account, one under date of September 5, the other of November 8, in the year 1865, make the aggregate sum of $1415; the plaintiff insists that to this extent, the account sued on is not prescribed, because those items were for property belonging to plaintiff and sold by Howell, who retained the proceeds without accounting for them. This allegation was sustained not by any written evidence, but by the parol evidence of the plaintiff and of an absent party who, by the admission of defendant’s counsel, would swear, if present, that Howell acknowledged the correctness of the account. The items aggregating the sum of $1415 as aforesaid, figure as constituting, with the other items, one account. This account is not shown to be a stated account, and we regard it as an open account and prescribed by three years.

The bill of exceptions was well taken. The testimony objected to should have been excluded.

It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered- that there be judgment in favor of the defendant, the plaintiff paying costs in both courts.

Rehearing refused.


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    No. 602.
    Charles McNabb v. Martin Tally and Duncan.
    A bill was drawn by A. Flournoy to bis own order upon. Thurmond and Hicks and Martin Tally, and by them accepted for $1125, which bill was indorsed by Duncan. Thurmond and Hides, joint acceptors with Tally, paid on the second February, 1871, one-half of the amount of the bill, principal and interest then due, and were released from further liability by the plaintiff, holder of the bill. He now claims from defendants, in solido, Martin Tally, as accepter, and Duncan as indorser, the remainder due.
    The defense, on the part of Tally, that plaintiff should have exhausted his legal remedies against the drawer and the accepters Thurmond and Hicks, is not tenable under the rules of the law merchant. Tally and Thurmond are jointly bound as between themselves, but each is bound to the holder for the full amount. As to the indorser, Duncan, he is released by failure to serve legal notice upon him of the protest of the bill.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Lgan, Williamson, Wm. IT. Wise, for plaintiff and appellant. D. M. Oalliham, Lunean and Moneure, ior defendants and appellees.
   Taliaferro, J.

This suit is brought against Martin Tally as the accepter and James W. Duucan as the indorser of a bill drawn by A. Flournoy, Jr., to his own order upon Thurmond and Ilicks and Martin Tally, and by them accepted for $1125. The plaintiff alleges that Thurmond and Hicks, joint accepters with Tally, paid on the second February, 1871, one-half the amount of the bill, principal and interest then due, and that he released them from further liability. He claims from the defendants in solido the remainder due.

The defendant, Tally, denies any indebtedness to the plaintiff; avers that he accepted the bill for the accommodation of the drawer, a fact well known to him, and that his acceptance and indorsement were subsequent to that of Thurmond and Hicks. He alleges that he was but the security of Flournoy and Thurmond and Hicks, and can not be held liable until the plaintiff shall have exhausted his legal remedies against the plaintiff and the accepters Thurmond and Hicks.

The other defendant, Duncan, answered, denying indebtedness to the plaintiff.

Judgment was rendered in favor of the defendants and against the plaintiff, and he appeals.

The case must he determined by the rules of the law merchant. Under tlfese it is clear the defense is without force. Tally and Thurmond are jointly bound as between themselves, but each bound to the holder of the bill for the full amount. Duncan, the indorser, was released by failure to serve legal notice upon him of the protest of the bill. '■

It is therefore ordered, adjudged and decreed, that the judgment of ¿he lower court be annulled and reversed. It is further ordered that the plaintiff recover from the defendant, Martin Tally, five hundred and sixty-two dollars and fifty cents, with eight per cent, interest thereon, from the twentieth of Deoember, 1870, until paid, with all costs of suit.

Rehearing refused.


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    No. 608.
    A. B. Levisee v. Shreveport City Railroad Company.
    When plaintiff undertook to perform for the company a service not strictly within the sphere of Ms duties as President thereof, he should have required a stipulation for remuneration for said service, if lie expected it from the company. He was the president, acting within the scope of his authority in directing the construction of certain works. He had no right, however, to employ himself as a master builder and expect a good salary.
    In regard to the expenses for constructing a depot, there was a full settlement between plaintiff and defendant, and if plaintiff’s account now presented is valid, it should have been embraced in that settlement, there being no allegation of error.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      J. B. Slattery, Wm. A. Seay, for plaintiff and appellant. JEgan & Wise, for defendant and appellee.
   Wyly, J.

Plaintiff appeals from the judgment rejecting his demand, $750 for five months services rendered by him in superintending the construction of a railroad depot for the Shreveport City Railroad Company, and also an account of $20 for tools and materials furnished for the work. The plaintiff was the president of the company, and the corporation promised no remuneration for his services in directing the construction of a depot.

He was in no sense a negotiorwm, gestor, and there was no implied contract between him and the company. He was the president acting within the scope of his authority iu directing the construction of the work. He had no right, however, to employ himself as a master builder, and expect a good salary. He could not put his duty as president in conflict with his private interest, in getting a good situation as builder at a good salary. Prom the evidence, we are satisfied that when the company authorized him to direct the construction of .the work no salary as master builder .was expected to be paid¿ When plaintiff undertook to perform for the company a service not strictly within the sphere of his duties as president, he should have required a stipulation for remuneration for said service if he expected it from the company.

In regard to the expenses for constructing the depot there was a full settlement between plaintiff and defendants, and if the account of $20 is valid, it should have been embraced in that settlement, there being no allegation ot error in said settlement.

Judgment affirmed.