text:
    The Citizens’ Bank of Louisiana v. The Levee Steam Cotton Press Company.
    Ifc was competent for the State to make such changes in the mode of administration of the insolvent banks, as the public interest required.
    The laws which have from time to time been passed for the liquidation of the affairs of the Citizens' Bank of Louisiana, are constitutional.
    The decree of forfeiture, pronounced against that bank, did not thereby give the right to the stockholders to insist on an immediate liquidation of its affairs.
    The statutes, which provide for a more protracted administration, did not impair the obligation of any contract; nor was the stockholder, in consequence of those statutes, invested with a right to release his property from mortgages which he had created on it.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      A. Pitot, for the plaintiffs.

      John R. Grymes and A. K. Josephs, for defendants.
   By the court :

Eustis, C. J.

This appeal is taken by the defendants, from a judgment rendered against them at the suit of the Citizens’ Bank, in the Court of the Fourth District of New Orleans, for the sum of four thousand five hundred and six dollars, with eight per cent interest, from the 1st of May, 1851.

The action was for the recovery of an assessment of one dollar per share on the stock of the bank, which was imposed for the term of seven years, for the purpose of meeting the obligations of the bank within that time. It is not understood that any question is raised concerning this assessment, except that which involves the constitutionality of the legislation, by virtue of which the liquidation of the affairs of the bank has been conducted.

This point has been argued at bar, and we shall proceed at once to give our impressions upon it, without referring more than is necessary to the details connected with it.

The ground on which the constitutionality of this legislation is assailed, is that it impairs the obligation of contracts. The precise point in which the legislation conflicts with the Constitution, is not stated; but the proposition is put on general terms, and it is supposed that the objection will be best met, by considering the constitutionality of this legislation as a whole.

By the forfeiture of the charter of a corporation under the Civil Code, the corporation itself became extinct. Code, article 38 § 2. The State v. The Orleans Navigation Company, 7 Annual, (decided in February term 1852.)

But though the corporation was dissolved by a decree of forfeiture, the property of the corporation became vested in its members, and this court held, that courts had the power to appoint persons to liquidate and settle the affairs of an insolvent bank, whose charter had been decreed forfeited, in the absence of any provision by law for that purpose. Stark v. Burk, 5 Ann. 741.

The Citizens’ Bank is one of the property banks of New Orleans. Its charter was created by two laws, one passed in 1833, and the other .in 1836. Under the latter, the bank went into operation, the State issuing its bonds for several millions of dollars.. These bonds having been, negotiated for the benefit of the bank, its capital was thus provided. The stockholders gave mortgages for the amount of their stock, which were given in order to secure the payment of the capital of the bank thus furnished, and the loans to which they were respectively entitled, as stockholders, under the charter.

The duration of the charter of the bank, was limited to fifty-one years from April 1833.

The Act of 1842, providing for the liquidation of banks, in its first section, réenacted the general provision of the code concerning the effect of the forfeiture of the charters of bank. In the 28th section, it had this clause for the benefit of these banks, in which the State itself was a stockholder, or for which it had issued its bonds : If a decree of forfeiture be rendered against any one of such banks, the corporation shall not be deemed dissolved, but it shall retain all its corporate powers and privileges, with the exception hereinafter mentioned, &c.

The charter of this bank was adjudged to be forfeited under this Act of 1842, and by virtue of this act and of the Act of the 5th of April, 1843, the State had entered into the possession, and the exclusive management of its assets, and took upon itself the administration of its affairs. The corporate existence of the banks, appears to be maintained throughout all the legislation in relation to it.

By the third section of the Act of 1836, authorizing the emission of bonds on the part of the State, in order to provide the capital for the bank, it is provided, that for the guarantee of the bonds thus emitted, all the securities granted, under the act of incorporation, to the holders of its bonds, are hereby transferred to the State and the holders of the bonds to be issued under the Act of 1836. The securities, particularly thus referred to, .were the mortgages given for stock, which were to stand as securities for the loan, which was to be made to provide the monied capital of the bank. This section, it will be observed, transfers these securities to the State and the holders of the bonds. As the bonds were to be issued by the State, this clause can have no meaning, except to transfer the securities to the State, as a species of pledge, for the bonds which were to be issued by virtue of the act.

There never was an occasion in the history of this State, in which the active interference of the government was more imperatively called for, than in 1842. A violent convulsion in the monied affairs of the country had taken place. So urgent was the necessity, that a general bankrupt law had been passed to take effect in that year. The banks in this city, which furnished the ordinary currency, were most of them insolvent, many hopelessly so. There was no provision in the bankrupt act, nor in the statutes of the State, for the liquidation of . insolvent corporations. The charters of the two property banks had been viola-an(j jjjgj,. notes and obligations were in sufferance. In this state of things, the laws were passed, vesting the possession of the assets of these banks in the State, and providing for their administration under its authority, whenever their charters should be judicially decreed to be forfeited, and these banks should not comply with certain conditions imposed by the Act of 1842. Managers were to be appointed by the State, who were to conduct their affairs under the direction of the board of currency. Under the administration of the managers appointed by the State, this institution was conducted until the year 1847, when the administration was changed. Three managers appointed by the State, and three directors chosen by the stockholders, constituted the board entrusted with the affairs of the bank under the law of that year.

We do not perceive in this legislation anything more than the exercise of the power, which the government of the State has over bankrupt estates. This power is inherent in all well regulated governments, under which commerce is regulated. In England, statutory provisions in the nature of bankrupt laws, have been from time to time enacted for more than three centuries, from the reign of Henry Till to William IV. It was exercised by several of the States before the Constitution of the United States, and the power to pass uniform laws on the subject of bankruptcy, was unanimously conceded to the government of the United States, by the convention which framed the Constitution In almost all the States, insolvent or bankrupt laws are in operation in some form more or less stringent.

Blackstone says, that by virtue of the statutes of bankruptcy, a bankrupt may lose all his estates, which may be at once transferred by his commissioners to their assignees without his participation or consent. 2d Commentaries, 286 and 480.

The power has been frequently exercised in this State, by the enactment of laws for the sequestration of the property of debtors.

If it was competent for the State to provide, by law, for the administration of the properly of insolvent banks, the power to make such changes in the mode of administration as the public interest required, we do not think can be drawn in question, under the facts of the present case. The possession asserted by the State of the assets of the bank, was constructive, and for the purpose of putting them beyond the reach of wasteful and destructive litigation. It was administrative and conservative'! n its object and character. The affairs of the bank were put in commission under the authority of the State, as any other insolvent estate would be, under ordinary commissioners or syndics.

The present action, as we have stated, was for the recovery of an amount assessed on each share by the managers and directors of the bank, under the new administration, organized under the Act of 1847. The first series of the State bonds, due in 1850, could not be met by the bank; and an agreement was made with the holders, by which the payment was extended to five annual installments, and more than half a million of arrears of interest was funded in seven annual payments. By the Act of 1847, it was made the duty of the managers to exact from the stockholders, such an annual contribution, as would form a fund sufficient to meet regularly the payments due on the bonds of the State. By a resolution of the board, a call was made on the stockholders, for this object, of seven dollars per share, payable from one to seven years, in the sum of one dollar per share.

It is contended, on behalf of the defendants, that they have a right to insist on an immediate liquidation of the affairs of the bank, and cannot be compelled to submit to this protracted administration imposed by the Legislature, and have a right to have their property released from the burden of their mortgages.

A view of the situation of the bank shows, that an immediate liquidation of its affairs is impossible.

In 1836, the State issued its bonds, to the bank, for upwards of seven millions of dollars, one fifth of which were payable in the years 1850,1859, 1868, 1877 and 1886. Coupons of interest were attached to each bond, made payable in London and in Amsterdam. The first series of bonds amounting to $1,279,557 14, fell due in 1850, which the bank could not pay, and for which no provision was made by the State. Besides this amount in sufferance, the arrears of interest due on the bonds, amounted, in 1849, to -no less than the sum of $883,736 43, a portion of which was funded, as has been before stated. When it is considered that so large a portion of the capital of the bank is, by its charter, loaned out on mortgage to the agricultural interest, it is obvious that the available means of the bank at any future period, must be attended with uncertainty, and that an immediate realization of its assets is impossible.

The extension of the term of payment of the series of the bonds for five years, in annual installments, was authorized by the Act of 1847, and it seems obvious that, in the presence of facts like these, an administration of so weighty and complicated a character as this, ought not to be disturbed, except in the furtherance of a clear and well defined right.

Being of opinion that there is nothing unconstitutional in this legislation, we see no legal grounds for the refusal, on the part of the defendants, to pay the contribution imposed, in order to meet the engagements of the bank, to which they bound themselves, by their original obligations, for stock.

As the only question argued at bar was that on which this opinion is given, we have refrained from touching any other subject relating to the defence. The case presents a variety of phases, under which we have considered it in our deliberations, but none of them can sustain the present defence.

The judgment of the district court is therefore affirmed, with costs.

        Preston, J., did not sit in this case.


source: Caselaw Access Project

author: Seideui,, J.

license: Public Domain

text:
    State of Louisiana v. The Judge of the Fifth District Court of New Orleans.
    Where the interest of the applicant appeared to he less than three hundred dollars, the Supreme Court refused to entertain an application for a mcm&ar/ms.

    ON an application for a mandamus, Mott and Frayser appeared for the applicants.
   By the court:

Seideui,, J.

The application does not assert that the applicants have any interest in the property sequestered, beyond the freight, to wit, $156 28; while, on the other hand, some of its allegations are pregnant with the inference that their interest is thus limited. To authorize us to interfere, by mandamus, a clear showing as to our jurisdiction should be made. The present application being unsatisfactory in its averments, is dismissed at the costs of the applicants.


author: SmoEM,, J.

text:
    Leverich, Curator of the Succession of Walsh, v. Citizens’ Bank of Louisiana.
    A party who asks relief by injunction, against the entire claim of bis creditoi*, should make such a showing as will distinctly inform the court of the pecuniary extent of his danger.
    from the Fourth District Court of New Orleans.

      Samuel R. Walker, for plaintiff.

      A. Pitot, for defendant.
   By the court:

SmoEM,, J.

The bank obtained an order of seizure and sale against certain shares of bank stock, lands and slaves, belonging to the succession of Walsh, pledged and mortgaged to secure a stock note for $8907 40, made by Walsh, which has been reduced by partial payments. Our impression at the argument was, that there was hardship in the prosecution of the seizure, under the circumstances stated at bar, and that, perhaps, the plaintiff in this suit was entitled to enjoin. Such may really be the case. But, upon examining the petition for injunction, we find its averments to be loose, and particularly in this, that there is nothing in the petition which indicates what is the amount of the tacit incumbrance which is said to be set up, as a prior burden, superior to the mortgage in favor of the bank, which latter mortgage Walsh appears to have assumed upon buying the stock, lands, &c. A party who asks relief by an injunction, against the entire claim of his creditor, should make such a showing as will distinctly inform the court of the pecuniary extent of his danger; and this is particularly to be required in this court, where the plaintiff in injunction asks us to disturb a decree of the district court adverse to his pretensions. Our jurisdiction in this case is not quite clear.

Judgment affirmed, with costs.

         Preston, J., did not sit in this case.


author: Eustis, C. J.

text:
    Hills v. Mooney—Mooney v. Hills.
    A suit for the ieoision of a sale, on the ground that the vendor promised to release existing mortgages before the payment of the first note, oannotbe sustained where the vendor had made no offer to pay the firstnote, and where there is no evidence of what the mortgages are, of which he complains.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. Wharton Collens, for Mooney.

      E. L. Ooold, for Hills.

   By the court:

Eustis, C. J.

On the 16th of April, 1851, the plaintiff sold to the defendant two lots of ground in the city of New Orleans, for $2200, of which five hundred and fifty dollars were paid cash, and for the balance the defendant gave his two notes for $825 each, payable in twelve and eighteen months.

The certificate of mortgages was dispensed with in the act of sale, and the defendant took from the plaintiff’s agent an agreement, under private signature, to furnish the defendant a clear certificate from the recorder of mortgages for this parish, stating that there are no mortgages recorded against the lots sold; said certificate to be furnished prior to the payment of the note, say twelve months from the 16th of April, 1850. The plaintiff reserved a mortgage on the lots, and what other mortgages affected .them, is not made to appear.

The clear certificate was not furnished the defendant until the 21st of November, 1851, after an order of seizure and sale had been issued on the plaintiff’s mortgage, which was enjoined at the instance of the defendant.

In the petition for the injunction, the defendant claims to have the sale rescinded, on the ground that the certificate was not furnished within the time stipulated, &c.

The district judge decreed the recision of the sale, and the recovery, by the defendant, of the cash and notes. The plaintiff has appealed.

The defendant bought property, and gave his notes for it, when he knew it was mortgaged, under a private agreement on the part of the vendor to raise the mortgage prior to the payment of the first note. The words, ‘ ‘ say twelve months from the 16th April, 1851,” do not materially affect the sense of those which precede it. He has never paid, or offered to pay, the first note. We have no evidence whatever, as to what the mortgages were of which the defendant complains. Under these facts, we see no ground for the rescisión of the sale. Denis v. Clague’s Syndics, 7 Mart. N. S. 97. Peirce v. McMahan et al. 15 L. R. 218.

This case was tried under an agreement as to the pleadings, which it is not necessary to recite. Acting on this agreement, .we can only give this judgment:

It is therefore decreed, that the judgment of the district court'be reversed, and that the plaintiff’s petition be dismissed with costs, the defendant paying the costs of this appeal; and that the right of the plaintiff to recover the unpaid balance of the price of the lots, be reserved.


author: Rost, J.

text:
    Pierre A. Becknell v. A. G. Weindhal.
    Article 656 of the Civil Code should be so construed, as to reconcile the respect due to property with the interests of agriculture.
    The fall of lands fronting on the water courses in Louisiana, is from the river to the swamps behind ; the natural drain is, therefore, from the front to the rear, and the right to drain them to the rear by means of ditches, cannot he doubted; but that right should be exercised, so as to cause no injury to others without necessity. The owner of front lands cannot, therefore, by artificial drainage, accumulate the water in the rear of his field in amuch larger volume, than if suffered to flow naturally, and thereby impose a more burdensome servitude on the lands of the proprietor below-
    APPEAL from the District Court of the parish of St. John the Baptist, Albert Duffel, J.

      D. Forcelle, for plaintiff.

      St. Paul and Bouny, for defendant.^
   By the court:

Rost, J.

The plaintiff, who is the owner of a sugar plantation fronting on the Mississippi river, has obtained, against the defendant who owns the adjoining plantation below, a judgment ordering him to remove certain works erected by him on his estate, on the ground, that they obstruct one of the natural drains of the plaintiff’s land.

The defendant has appealed, and asks a reversal of the judgment on two grounds: First, that the natural drain claimed, no longer exists. Second, that if it does exist, the plaintiff has done, upon his land, works which render the servitude more burdensome, and the drain constructed by him is no more than adequate to counteract the injurious effects of those works upon his lands. He relies upon the authority of the case of Martin v. Jett, 12 L. R. 501.

It may be conceded, that article 656 of the code, upon which both parties rely, should be construed, so as to reconcile the respect due to property with the interests and necessities of agriculture, and the Roman law from which that article is derived, is the best source to which we can resort for the purpose of ascertaining its practical meaning. Although the rule of law was, in Rome as here, that the owner of the upper estate can do no act, by which the servitude on the estate below is rendered more burdensome, by the jurisprudence of that country, he had the right to do all works necessary for the cultivation of his fields, without regard to consequences ; he could throw his land in ridges, and give the water-furrows any direction he thought proper; when useful to his crops, he was authorized to accumulate the waters falling upon his lands, íd the rear of his field, without being subjected to the action aquae pluviae arcéndae. D. § 5,1. 1, de aqua et aqua.

The same right is clearly deducible from the tenure of the lands fronting on water courses in Louisiana. The fall of those lands, is from the river to the swamps behind. The natural drain of the water falling on those lands, is therefore generally from the front to the rear, and the facility of draining to the low grounds behind was, no doubt, one of the reasons why grants were made with narrow fronts on the rivers, and running back a great depth for quantity. The condition of those grants was, that the land should be cultivated; and the obligation to improve and cultivate, necessarily implies the power in the grantee to do all works necessary to a profitable cultivation; and, as they cannot be cultivated without being drained, the right to drain them to the rear, by means of ditches, cannot be doubted; but that right should be exercised so as to cause no injury to others, without necessity. The plaintiff, in this case, must take the burdens as well as the benefits of artifical drainage ; and after availing himself of it, to accumulate the water in'the rear of his field in a much larger volume than it it would have if suffered to flow naturally, and rendering thereby the servitude on the back lands of the defendant more burdensome, it would be unjust to permit him to accumulate, without necessity, a portion of those waters in the middle of his field, and to throw them, as from a stream, on the cultivated lands of the defendant. This necessity is shown not to exist; the works complained of were erected several years ago, and the canal, at the defendant’s lower line, has been found sufficient for the drainage of his land to a greater depth, than that of the natural drain claimed.

Under the Roman law, when the works erected to obstruct the running of the water had been made openly, and in the presence of the party who had a right to object to them, and he had not objected, his implied acquiescence was held to be a waiver of the right of servitude. See Digest, laws 19 and 20 de aqua et equa. The spirit of that legislation, at least, may be invoked in aid of the presumption arising from the long silence of the plaintiff, that he considered himself no longer entitled to drain through the defendant’s fields.

There are, no doubt, cases in which the drainage from the front to the rear, is interrupted by bayous and deep coulees, which the proprietor of the lower estate is bound to keep open; but every low place, in a cultivated field, is not a natural drain, although the rain water coming from above might flow through it, if the land was in its natural state; the best portion of the alluvial soil of Louisiana is undulating, and the opposite construction would subject half of it, to perpetual sterility. When the low places in a field are not too deep to be drained by the system of draining now in general use, they become a part of the field, and cease to be natpral drains.

The evidencie in this case shows, that the coulee, claimed as a natural drain, begins some distance from the land of the plaintiff, and extends through it and ifrrough that of the defendant; that a portion of it, remaining in its natural state at the boundary line of the two plantations, is about two feet deep ; that other parts of it have been cultivated for many years by the defendant, and others, and that it would all be susceptible of cultivation, if the plaintiff had not converted that portion of it, between his lines, into broad and deep reservoirs for the rain water. It is also shown, that the plaintiff, not'viewing it as the natural drain of the lands above him, has drained it up as it enters his field, and again in the middle of his plantation; the water in the reservoir between the two dams, is carried to the swamp behind by four leading ditches; that which accumulates between the lower dam and the defendant’s line, is carried to the rear by a canal deeper than the couUe in its natural state, and sufficient to drain that portion of the plantation. If, by a sudden sinking of the land in the direction of this canal, it had become lower than the coulee, the new opening thus formed would have been, henceforward, the natural drain of the plaintiff’s land, and the couUe might have been closed by the defendant and cultivated. The plaintiff has effected the same result by artificial means, and, as in the interest of agriculture the law gives to his canal all the immunities of a natural drain, it must also be viewed in that light, so far as it liberates the defendent from a double servitude.

It is a matter of high- public interest, that all low and wet lands in our fields, be made useful to man, and the conclusion to which we have come, is a fair inference from the principle invoked by the plaintiff, that in cases like this, the abstract legal rights of the parties, should be controlled by the interests of agriculture.

For the reasons assigned, it is ordered, that the judgment in this case be reversed. It is further ordered, that the injunction be dissolved; and that there be judgment in favor of the defendant, with costs in both courts.


text:
    Emma Beauregard, Wife of E. Delery, v. Her Husband and J. H. Eimer.
    The wife is not bound by her signature to a note, signed jointly with her husband, even at the suit of an innocent endorsee, unless it be proved that the consideration of the contract inured to her separate advantage. Nor will the acknowledgment of the wife, in the act of mortgage, that the money had been borrowed for her separate use, relieve such endorsee from the necessity of making that proof.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Lamb and Eustis, for plaintiff.

      Schmidt, for defendants.
   By the Court:

Rost, J.

J. H. Eimer, one of the defendants, discounted a note drawn by the plaintiff and her husband, in solido, and secured by a mortgage upon the paraphernal property of the plaintiff. She acknowledged, in the act of mortgage, that the proceeds of the note had been received by her for her own wants and personal affairs.

The note was protested at maturity, aud Eimer obtained an order of seizure an<^ sa*e’ which the plaintiff has enjoined, on the ground, that this is a debt of her husband, for which she was without capacity to bind herself or her property. The district judge perpetuated the injunction, and Eimer has appealed.

We are of opinion that the appellant has not made out a case, which can be considered an exception to the rule, that the wife is not bound, by her signature to a note, signed jointly with her husband, even at the suit of an innocent endorsee. Sprigg v. Bossier, 5 N. S. 55. Gaalon v. Matherne, 5 Ann. 496.

It is a principle which has come down to us from the laws of Spain, that he who contracts with a married woman, must show, affirmatively, that the contract turned to her advantage. The only exception under those laws was when the wife renounced, in due form, the 61 law of Toro. Brognier v. Forstall, 3 M. R. 577. Chapillon v. St. Maxent, 5 M. R. 167. Banks v. Trudeau, 2 N. S. 39.

This exception no longer exists, and proof, that the consideration of the contract inured to the separate advantage of the wife, is, in all cases, necessary to destroy the legal presumption, that contracts entered into during marriage, jointly by the husband and wife, are the contracts of the husband. It has been frequently held, that the acknowledgment of the wife, in the act of mortgage, that the money had been borrowed for her separate use, did not dispense the creditor from making that proof. Prudhomme v. Edens, 6 R. R. 64. Erwin v. McCalop, 5 Ann. 173.

The circumstance of the wife having a separate advantage in the contract, is of the essence of the obligation, and must be proved before a recovery can be had upon it Brandegee v. Kerr and Wife, 7 N. S. 64.

There is nothing inconsistent with this view of the law in the case of Patterson v. Fraser and Wife, 5 Ann. 586. Mrs. Fraser made her case stronger, by showing that the debts, which were to be satisfied out of the money borrowed, had not been paid. But the decision was put upon the ground, that the plaintiff had failed to show that the advances made by him had inured to her benefit. There might be cases of deceit and fraud on the part of the wife, in which she would be held liable, but this is not one of them. It was incumbent upon the plaintiff to ascertain the uses for which the money was borrowed, and to see that it was applied in such a manner, as would subject the separate estate of the wife to the payment of it. As he failed to do so, and there is nothing in the record to show the use made of it, the judgment must be affirmed.

The judgment is affirmed, with costs.


author: Preston, J.

text:
    John Rugely v. James Goodloe & Co.
    Kule of damages where defendant is in good faith. G. C. 1928, s. 1.
    If the contract on which the action is brought, is annexed to or made a part of the petition, an objection to the introduction of it in evidence, on the ground of variance, cannot be sustained.
    In a contract for the performance of work, the omission to state the time at which it is to be completed, is an incident which the court will supply according to equity, usage and law; and testimony may be received of those facts and circumstances which tend to show the time for its completion, which the parties may be presumed to have had in view.

      APPEAL from the Second District Court of New Orleans. The case was tried by a jury before Lea, J.

      Elmore and King, for plaintiff.

      G. B. Duncan, for defendants.
   By the court:

Preston, J.

The plaintiff is a sugar planter in Matagorda county, in the State of Texas; the defendants, manufacturers of sugar mills and engines, in Cincinnati, which they also put up on southern plantations.

On the 14th of February, 1850, they entered into an agreement that the defendants should build and put into operation, on the plantation of the plaintiff, a sugar mill and engine, particularly described in the agreement, with all the necessary pumps and pipes to make the work complete. They agreed to have the mill and engine delivered in New Orleans on or before the 1st day of June, 1850. On the other hand, the plaintiff agreed to have it transported to his plantation within sixty days from the time it was landed in New Orleans, to supply the necessary brick work and timber for putting up the mill and engine, and to furnish a suitable number of hands to assist in putting them up; and the defendants agreed to put them up, in complete running order, on the plantation of the plaintiff. In consideration of the premises, the plaintiff agreed to pay, and has paid, the defendants four thousand one hundred dollars.

The plaintiff alleges, that the defendants failed to comply with their contract; that he thereby lost one-half of his sugar crop of 1850, equal to an hundred hogsheads of sugar, worth upwards of five thousand dollars, and claims damages to that amount.

The defendants admit the payment of the price of the mill and engine; deny that they were bound to execute the work at any particular time; allege that they pushed the work with all possible diligence, and complied with their contract without any unavoidable delay, and that the plaintiff lost nothing by their fault or negligence; but, if he lost any part of his crop, it was by his own delays in not providing for the seasonable delivery of the mill on his plantation; in not being prepared for putting it up when they were ready to perform their part of the contract, and in not having a sufficient quantity of seasoned wood to manufacture his sugar when the mill and engine were put into operation.

The case was tided by a jury, who rendered a verdict for three thousand dollars damages in favor of the plaintiff, and the defendants have appealed.

The plaintiff alleged, that the defendants were bound by their contract to complete the mill and engine by the 20th of October, 1850. He offered in evidence the contract, which contained no such clause. The defendants opposed its introduction in evidence, because it was not the contract upon which the plaintiff declared or rather varied in terms from the allegations in his petition. The court submitted it iu evidence, and they excepted.

The plaintiff had annexed his contract with the defendants to his petition, as part thereof. The defendants were thereby perfectly apprised of the contract upon which they were sued, and suffered no surprise by the offer of it in evidence. The allegations in the plaintiff’s petition amount substantially to his interpretation of the contract, upon the correctness of which interpretation it was for the court and jury to decide. The bill of exceptions to the introduction of the contract in evidence is not, therefore, tenable.

The plaintiff offered verbal evidence to show, that planters commence taking off the sugar crops, in the part of Texas where he resides, from the 10th to the 20th of October; that it is dangerous, from the probability of frost, to delay it longer; that one of the defendants had been in Texas about the time the negotiation for the mill and engine was commenced, became acquainted with the extent of the plaintiff’s crop, the necessity of that early commencement to secure it, and, of course, to have the mill and engine ready for that purpose; and that the contract for the mill and engine was made for taking off the ensuing crop of the plaintiff, and with a full knowledge and view of these necessities. Testimony on these subjects was opposed, as tending not only to vary but add to the contract of the parties, and as being forbidden by article 2256 of the Civil Code.

No precise time was specified in the written contract, at which the mill and engine should be put up and in operation; and yet it was to be put up and in operation some time. Now, equity, usage and law, supply in contracts such incidents as the parties may reasonably be supposed to have been silent upon, from a knowledge that they would be supplied from one of these sources. Civil Code, art. 1959.

We cannot doubt, from a perusal of the contract itself, from the fact that the machinery was to be delivered in New Orleans by the 1st of June, and to be transported to the plaintiff’s plantation within sixty days afterwards, that the mill and engine was intended by both parties to take off the plaintiff’s ensuing crop of sugar. All this testimony offered and objected to, was proper, therefore, to show at what time it was necessary to have the mill and engine put into operation in order to take off that crop, that is, to accomplish the object for which the plaintiff engaged and agreed to pay for them, and to show that the time within which they were to be completed, was perfectly within the knowledge and understanding of both parties, though not expressed in the agreement; and the testimony fully satisfies us, that it was the understanding of the parties, and the duty of the defendants in pursuance thereof, that the mill and engine should be put up and in operation at least by the 20th of October, 1850, to enable the plaintiff, like all other planters in that vicinity, to commence taking off his crop by that day, because the commencement could hot be protracted beyond that time, without danger of losing the crop by frosts.

The voluminous testimony furnished by the plaintiff, shows that he fully complied with his contract; that he transported the machinery to his plantation so as to afford ample time to have enabled the defendants to put it up before the proper season for taking off the crop; that he had every thing necessary for the defendants, prepared by the 1st of August, 1850, when their workmen arrived on the plantation, and was ready and anxious to afford them every facility to comply with their contract; urged it all in his power, and warned their agent of the dangers of delay, and that he would look to the defendants for indemnification, if he lost his crop in consequence of their failure to have the mill and engine ready for the grinding season. The foreman and workmen arrived in time to have completed every thing in due season, but soon afterwards left the work in an incomplete state, and did not return until the 1st of November. The excuse was, that it was necessary to go to Galveston to make some changes in a pipe. The plaintiff proves that it was not necessary to go to Galveston lor that purpose; that if it was, he offered to send and have the change made, which could have been done, and that a very temporary absence of the foreman, at all events, would have been sufficient for the purpose. That instead of speedily going to Galveston, making the alterations and returning, the foreman went to and remained at other places.

In consequence of the delay, the mill and engine were not put into operation until the 11th of November, 1850. A killing frost came on the night of the 4th or 5th of December, before the plaintiff had been able to take off half of his crop, and destroyed nearly one-half of it. It was fully proved, that if the mill and engine had been completed by the 20th of October, the plaintiff would have saved his entire crop. .

The effort of the defendants, to show that the plaintiff’s loss was caused by the want of a^sufficient quantity of seasoned wood to take off his crop, has entirely failed. Rarely has a case been so clearly made out, that the damages were caused by the defendants.

The loss to the plaintiff, is clearly proved to have' been caused by the faults and negligence of the defendants in failing to comply with their contract, and they are bound to indemnify the plaintiff.

The jury did not, as urged by their counsel, charge the defendants with the value, in New Orleans, of the sugar lost, which would have exceeded five thousand dollars, but with only three thousand dollars, the probable value on the plantation, of the lost sugar, after deducting the expenses of manufacturing it.

The agreement of the parties was violated passively, no doubt, and without bad faith, but by sheer negligence on behalf of the defendants. What, then, is the rule of damages ? Those which may reasonably be supposed to have entered into the contemplation of the parties at the time of contract.^ Code, art. 1928,

No. 1. The making of the crop, and the means of making it, were the very things contemplated by the parties in making the contract; the loss of the crop, the thing which they intended to guard against, and that loss, was the damage reasonably entering into their contemplation if the contract was broken.

It becomes unnecessary, therefore, closely to scrutinize the charge of the court to the jury, though, at first view, we cannot say it was erroneous.

The judgment of the district court is therefore affirmed, with costs.