This court has no concern with the main demand, which is beneath the lower limit of its jurisdiction. The contention between the litigants isFirst. Whether Waterbury & Co. can be considered as in court to stand the reconventional demand; in other words, whether the court has jurisdiction over Waterbury & Co. on the reconventional demand. Second. If so, whether the plea of payment set up in extinguishment of the claims is established by the evidence.

1. There can be no doubt that when Waterbury & Co. authorized Smith to bring suit, they conferred upon him impliedly the power to stand in judgment for them, to resist any demand which the defendant company could set up against them, either touching the coupons, or on any other ground, however disconnected from the main claim. It is established beyond possible dispute that when one sued as the agent of another, whether this is done avowedly ab initio, or is subsequently ascertained, he is not the party plaintiff, but that his constituent, for whose benefit he acts, occupies the attitude of real plaintiff in the case. It therefore follows that, as this suit was brought by Smith, in his own name, but for account of Waterbury & Co., they, and not he, were the plaintiffs, and they stood in the controversy as though the proceeding had been established directly in their name as a commercial firm. Such being the case, under the law of this state, the defendant company had a right to set up against them any claim of its own, however disconnected from the original demand. This the company could do without citing Waterbury & Co., on the theory that, being already in court, they were bound, by the lex fori, to take notice of the defense and counter-claims of the defendant company. It would, indeed, be monstrous if the law allowed a non-resident to come here and press his demand, before a state court, against a resident citizen debtor, and deny the latter the right of urging against the suing creditor such demand as he might have against him, relegating him to a direct suit only, to be brought either at the debtor's domicile, or here, on attaching property which is not, or may never come, within judicial reach. It would be placing absent creditors, plaintiffs in action in this state, on a better and preferable footing than that which a resident citizen would occupy, for such citizen, in such suit, could be sued on a reconventional demand. A law which would sanction such enormity would be iniquitous. Fortunately none such blots the Code of Louisiana. The rule of practice is distinctly laid down that where the plaintiff resides out of the state, the defendant may claim in reconvention against him, for any cause, though the same be not necessarily connected with, or incidental to, the main action, and that the original plaintiff shall be bound to answer without pleading to the jurisdiction of the court. Code Prac. arts. 375, 377. Over the controversy growing out of the reconventional demand, in the instant case, the district court had therefore undeniable jurisdiction, the more so as the claims set forth in that demand were formally put at issue, by the admission of the previous existence of the claims and by the distinct averment of the extinction thereof by payment.

The conclusion thus reached is supported both by text writers and judicial adjudications, based on solid principles, all inclining to and agreeing in that seuse. A special review of the authorities would prove cumbersome, and a mere reference to them supplies. Story, Confl. Laws, §§ 557, 558, note 1; Whart. Conf. Laws, § 748; 1 Burge, Confl. Laws, p. 24; 1 Daniel, Neg. Inst. §§ 882, 883; Scudder v. Bank, 91 U. S. 406-413; Code Prac. art. 15; Lacoste v. De Armas, 2 La. 264; McNair v. Thompson, 5 Mart. (La.) 525; Eggleston v. Colfax, 4 Mart. (N. S.) 481; Mayo v. Savory, 4 Rob. (La.) 1; Dayton v. Bank, 6 Rob. (La.) 18; Evans v. Hatcher, 10 La. Ann. 98; Williams v. Hood, 11 La. Ann. 113; Bingaman v. Cocks, 16 La. Ann. 250; Moore v. Bres, 19 La. Ann. 532; Hobson v. Woolfolk, 23 La. Ann. 385; Willard v. Lugenbuhl, 24 La. Ann. 18; Zapata v. Cifreo, 26 La. Ann. 87; Huppenbaurer v. Durlin, Id. 540; Spears v. Spears, 27 La. Ann. 642; Klein v. Buckner, 30 La.

Ann. 680; Neel v. Hibard, Id. 808; Corral v. Towboat Co., 37 La. Ann. 803; Ashby v. Ashby, 39 La. Ann. 105, 1 South Rep. 282.

2. It appears from two resolutions of the board of directors of the defendant company, passed on two different days, the 17th and 24th of May, 1884, that the claim of the company against Waterbury & Co. was sold to E. L. Ranlett for $15,000, in his draft at 10 days on that firm, to be secured by collaterals, and that the claim sold was distinctly stipulated as including the rent in question, and that payment of that sum by Waterbury & Co. would discharge them from all liability under the lease. The facts proved are that E. L. Ranlett was the secretary of the defendant company, with power to act as its treasurer, under its act of incorporation; that he drew a draft on Waterbury & Co. for $15,000, which was not honored; that, ready to settle on the basis of the resolutions, Waterbury & Co. authorized their counsel, Fearn, as their attorney in fact, to draw on them for the amount, and that Fearn and Ranlett went together to the State National Bank, of which Kennedy was then president. Under the authority delegated to him by Waterbury & Co., and fully aware of the resolutions, Fearn drew on them, on May 26, 1884, a 10 days' draft for $15,000, to the order of E. L. Ranlett, who indorsed it, to which was attached Ranlett's receipt, dated May 26th following, for the full amount of the draft, making its delivery to Waterbury & Co. conditional upon the payment by them of the draft. On the handing over of the draft and receipt to Kennedy, to whom it appears that Ranlett had pledged certain bonds of the defendant company to secure an individual indebtedness, Kennedy turned over the bonds to Fearn, who carried them off wholly ignorant of the business relations between Kennedy and Ranlett. The draft and receipt were transmittted by Kennedy to the Bank of the State of New York for collection. On payment of the draft, Waterbury & Co. obtained the attached receipt. Surely, had Fearn, as agent of Waterbury & Co., or had Waterbury & Co. themselves, paid in cash the $15,000 to Ranlett, or had the receipt itself, alone, been simply presented to them, without any reference to the draft, and had they paid it, no question of the validity of the payment could have arisen, as the resolution specified that, on payment of this sum, Waterbury & Co. would be discharged. Now, instead of doing so, Waterbury & Co., through Fearn, drew their draft in favor of Ranlett, who, through Kennedy, forwarded it to the New York bank for collection, accompanied by a receipt acknowledging payment of the $15,000 mentioned in the draft in full of all claims, including the rental due the cordage company, of which he was the secretary and treasurer, and for which he acted, although he did not sign the receipt officially, carefully conditioning its delivery to Waterbury & Co. only on payment by them of the Fearn draft, and, on demand, Waterbury & Co. paid the draft to and got the receipt from the New York collecting bank. The practical difference between the supposed cases and the instant one, if any, is not discernible. As concerns Waterbury & Co., it is a matter of no significance who handled the draft and the receipt, and to whom the money went, whether Kennedy individually, or Kennedy, as the agent of Ranlett or of the company. They owed the debt to the cordage company, and they paid it, on the receipt of one who was its secretary and treasurer at the time. This was sufficient. Under the circumstances, they must be decreed as having in good faith fully satisfied the rent claim of the cordage company against them when they paid the Fearn draft and obtained the official or authorized receipt of Ranlett accompanying it, and as being completely exonerated as effectually as if they had paid their debt in cash to the president, treasurer, secretary, and board of directors, and held their authentic voucher for the payment and discharge. It has not been deemed necessary to allude to the bonds pledged by Ranlett to Kennedy, and delivered to Waterbury & Co., more than was done, as they are not considered as factors bearing on the sole important question of payment which had to be determined independent

of the existence of the bonds. This view of the case relieves us from considering a means of defense which was not even stated in the beginning of this opinion.

It is therefore ordered and decreed that the judgment appealed from, on the reconventional demand, be reversed and annulled; and it is now ordered and adjudged that, on said demand, there be judgment against the Atlas Cordage Company and in favor of L. Waterbury & Co., rejecting said reconventional demand for ever, and that the costs of the lower court on said demand, and those of this court, be paid by the cordage company, plaintiff in reconvention.

STATE ex rel. JOHNSON v. RIGHTOR, Judge.

(Supreme Court of Louisiana. December 3, 1888.)

1. MANDAMUS-TO DISTRICT Judge.

Determining whether relator is or not entitled to a peremptory mandamus compelling the respondent judge to grant him a writ of injunction depends upon whether the law entitles him to it as of right. If the law gives the respondent the discretion to grant or refuse it, the mandamus will not go.

2. SAME-EXERCISE OF JUDICIAL DISCRETION.

In a mandamus proceeding we are not to inquire whether, in disallowing the the writ, the respondent exercised a sound and legal discretion, but to simply ascertain whether he had any discretion at all.

(Syllabus by the Court.)

Application for mandamus.

Braughn, Buck, Dinkelspiel & Hart, for relator. Carleton Hunt, for respondent.

WATKINS, J. A. L. Johnson filed a petition in the respondent's court in which he claimed a large sum against the city of New Orleans, and requested the issuance of a writ of injunction against her, on certain grounds therein stated. The respondent granted an order directing the defendant to show cause on a day fixed why the writ should not issue, and upon due hearing thereof he refused to grant it. The relator assigns here that this act of the respondent was arbitrary and illegal, and avers "that there is absolutely no remedy or relief in the ordinary course of legal proceedings to protect relator's rights, except the injunction applied for;" and that his only means of obtaining this is by a mandamus.

The respondent returns, substantially, that the relator's petition "is inadequate, and fails altogether to justify an injunction;" and that "it discloses no cause of action," because it will appear by reference to the records in certain other suits and proceedings named that the demands of the relator against the city are "charged to be fraudulent, and that this is an issue under the law for the city council to pass upon, and not himself as judge." He further returns "that relator has not brought himself within the time and provisions of the Code of Practice, entitling him to the benefits of the writ of injunction as of right;" and he avers that he is not entitled to the writ under any of its provisions, unless it is those of article 303, which vest in the court of first instance discretion in determining the necessity for its issuance; that, in refusing the writ applied for by relator he acted within the discretion given him by law, and that his refusal was neither arbitrary nor illegal, and this exercise of judicial discretion cannot be reviewed and altered by mandamus.

Relator has annexed to his petition a copy of his petition for injunction, and made it a part of same. From it we obtain the following statement of his case, as presented to the respondent, viz.: He claims to be the transferee of a large number of claims against the city for about $40,000 for services rendered by the original holders in the months of March and April, 1888, in the

departments of improvements and police. That, "under the laws prescribing and regulating the financial administration of the city of New Orleans, her revenues are annually fixed and appropriated by a general ordinance called the Budget of the Year,' and that the amount so appropriated to the particular objects stated in said budget remain dedicated thereto, and cannot be diverted to any other cause or object as long as any claims against said appropriation exist." He avers "that, in accordance with said law, a budget of appropriation was adopted in 1887 for the year 1888, setting apart certain sums for the department of improvements and the department of police," and that, in accordance with said appropriations, said expenses were incurred; but the city council "has failed and refused to pass appropriate ordinances against said general appropriation in the budget to direct the payments of the rolls of March and April, 1888, in which his claims appear," but has "authorized expenditures against the budget appropriations for improvements and police for subsequent months, by reason of which the said appropriations will be totally absorbed, and leave nothing whatever to pay said rolls of March and April."

Under this state of facts the relator seeks to be recognized as the transferee of said claims, and the creditor of the city therefor, and to recover judgment directing "payment thereof to be made as if ordinances directing same had been passed in due and proper time, before the passage of any ordinances directing payments of subsequent work or service out of said budget appropriations," etc.

In aid of this specific relief relator prayed for the issuance of a writ of injunction "prohibiting said city from making any further special appropriations against the general appropriation in said budget contained to the credit of the department of public works and police, or for making any payments. on ordinances already passed for services rendered subsequent to that herein claimed, until such amount as is required to pay petitioners shall have been first set apart and reserved."

The argument in support of his right to an injunction is that, if the labor and police rolls of March and April are not paid from the revenues of 1888, as the law stands, he cannot be paid at all, and hence he is in danger of suffering an irreparable injury.

On this state of facts the question of law raised is not whether the plaintiff was entitled to his injunction at all, but, rather, was he entitled to it as a matter of right, and had the respondent the right to refuse it at discretion? In a mandamus proceeding we are not at liberty to inquire whether, in disallowing the writ, the respondent exercised a sound and legal discretion, but to simply ascertain whether he had any discretion in the premises. His exercise of discretion can only be reviewed on appeal

Such we understand to be the clear import of our opinions in City of New Orleans v. Telegraph Co., 37 La. Ann. 571, and State v. Rightor, 38 La. Ann. 916. Code Pr. art. 298, provides that "injunction must be granted and directed against the defendant himself in the following cases," enumerating them. Article 299 et seq. provide that “the injunction may be directed, etc., in the following cases. But the injunction prayed for by the relator does not fall within the denomination of any of the causes assigned under the former. It comes possibly within the scope of article 303. It provides that besides the cases above mentioned courts of justice may grant injunctions in all other cases when it is necessary to preserve the property in dispute during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, doing some other act injurious to the other party."

In Beebe v. Guinault, 29 La. Ann. 795, the court, in placing an interpretation on the final clause of that article, say: "Under this clause of article 303, it is clear, therefore, that a discretion is vested in the judge to determine whether the injurious act set forth is one proper for the exercise of the remedy of injunction." Therefore, applying this interpretation of Code Pr. art. 303

v.5so.no.19-27

to the case in hand, and the question propounded is answered in the negative that the relator was not entitled to his writ of injunction as a matter of right. And inasmuch as the respondent was vested with discretion in the matter of the allowance vel non of the writ, relator cannot compel his exercise of it by mandamus. High, Extr. Rem. § 24; State v. Police Jury, 39 La. Ann. 765, 2 South. Rep. 305. It is therefore ordered that the rule on the respondent to show cause be discharged, and a peremptory mandamus refused at relator's cost.

ALABAMA IRON-WORKS v. HURLEY et al.

(Supreme Court of Alabama. January 17, 1889.)

1. CONTRACTS-ACTION FOR BREACH-EVIDENCE,

In an action for breach of a contract to manufacture machines, where defendant was informed, pending negotiations for the contract, that many of the machines were for sale and use in another state, evidence of their market value in that state is admissible.

The evidence was harmless also, where such value was the same as the domestic market value, plus cost of transportation.

3. SAME-INSTRUCTIONS.

Plaintiff being unable to learn that defendant would violate his contract until it was probably too late to make other arrangements, and having made diligent effort to have the machines supplied by others, as shown by the uncontradicted testimony, instructions seeking to raise the question of his duty to make such effort are properly refused.

Appeal from circuit court, Jefferson county; LE ROY F. Box, Judge. Action by Hurley & Brown against the Alabama Iron-Works. Defendant appeals.

R. H. Pearson, for appellant.

White & Weakley, for appellees.

STONE, C. J. The Alabama Iron-Works agreed in writing with Hurley & Brown to manufacture for them, and furnish to them "in such quantities as may be required by said Hurley & Brown," certain machines known as the "Hurley Fertilizer Distributer," at five dollars apiece, the machines to be put up in good style and workmanship. By the contract "Hurley & Brown agreed to pay one-half of said price acccompanying the order, the balance when the goods are ready for delivery." The foregoing is the substance of the con

tract, dated January 13, 1888. On the day the contract was entered into the uncontroverted testimony is that one order for 25 machines was placed, and with it $40 as an advance payment. This, it is shown, was accepted by the Alabama Iron-Works as a sufficient advance payment for this order. Soon afterwards two other similar orders were placed of 25 machines each, and with each of them $50, which were also accepted as sufficient advance payment. The present action by Hurley & Brown counts on an alleged breach of said contract-First, in not manufacturing and delivering the machines; and, second, in delivering only six machines, which were of inferior material and workmanship. The testimony, with little, if any, conflict, tends strongly to show that the Alabama Iron-Works violated and broke its contract, and the chief question contested was the measure of damages.

Pending the negotiations, if the testimony of Brown be believed, (it was not controverted,) the officers of the Alabama Iron-Works were informed that many of the machines ordered were for sale and use in Louisiana. One of the orders was for that market. There was no error in receiving proof of the market value of the machines in Louisiana, for two reasons: First, it was the same as the proven value in Alabama, plus the transportation. This testimony could not possibly do any injury, as it was, at most, redundant. Sec