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Jonas V. Nixon, for appellants. J. Ward Gurley and G. A. Breaux, for appellees.
WATKINS, J. The claim of the plaintiffs against Milliken is for $6,200, with 8 per cent. interest from the 27th of February, 1883, and based upon a default on a contract for the delivery of 62,000 bushels of corn at New Orleans on the date named above. They represent that said corn was actually laden for shipment to them,-35,000 bushels on board the barge Brook bank, and 27,000 bushels on the barge Bessemer,-on the Ohio river, at or near Paducah, Ky., in January, 1883, and that same was actually shipped to them; but the defendant sent the bills of lading to Kehlor Bros., of St. Louis, to whom he had contracted to ship corn, and that they retained them, and claimed to have purchased the corn on their own account. They represent that they had purchased said corn of defendant for the fulfillment of other contracts, and, in consequence of said failure on the part of the defendant to deliver, they were coerced to purchase other corn on an advanced and rising market, and a heavy loss was thereby entailed upon them, and which they place at the sum stated above.
As the defendant was a citizen of St. Louis, in Missouri, their suit was commenced by an attachment, whereby they sought to reach certain funds supposed to be in possession of Petit & Lawler, of the city of New Orleans, as the agents of Kehlor Bros., of St. Louis. Consequently plaintiffs caused Petit & Lawler, as agents, to be cited and made garnishees on the 27th of February, 1883, and as such propounded to them certain interrogatories. On the 14th of May, 1883, Kehlor Bros. and J. B. M. Kehlor were cited personally as garnishees, also, and the same interrogatories, substantiaily, were propounded to them. On the 21st of May, 1833, Kehlor Bros. and J. B. M. Kehlor, in person, made answers to the interrogatories denying any indebtedness to the defendant, and the possession of any property or money of his. On the 25th of March previous, and on the 20th of May subsequent, Petit & Lawler, as agents of Kehlor Bros., filed like answers. On June 8, 1883, plaintiffs took a rule on the garnishees to show cause why their answers should not be declared untrue, and judgment rendered against them accordingly. During the pendency of these proceedings the defendant confessed judgment in plaintiff's favor for the full amount claimed, and final judgment was thereon rendered and signed in this cause. Upon the trueness of the answers of the garnishees there was quite a protracted trial, and after hearing a large number of witnesses, and examining quite a multitude of documents and accounts, the learned judge of the lower court rendered a judgment against Kehlor Bros., ting their answers aside, and decreeing them to pay to the plaintiffs the sum of $4,442.17, with 5 per cent. interest from the 8th of June, 1883, the date plaintitfs' rule was filed. It is from this judgment that Kehlor Bros., garnishees, prosecute this appeal.
1. An objection is pressed in argument to the effect that plaintiffs' prayer is that Petit & Lawler, agents of Kehlor · Bros., be cited as garnishes, and that the judge a quo directed garnishment process to issue against Petit & Lawler personally, and not as agents, and that citation issued conformably thereto could not bring Kehlor Bros. into court, and hence the garnishment of February 27, 1883, must fall. Conceding this to be the state of the record, no advantage can result to the garnishees, the parties urging the objection, because it also appears from the record that, as agents, Petit & Lawler twice answered the interrogatories that were propounded, and they are included in plaintiff's rule to traverse. It likewise appears that the trial of this rule, from start to finish, was proceeded with as though Kehlor Bros. were parties thereto. Simplified, the objection is to the effect of a citation, and, it being defective and insufficient, the court was without jurisdiction ratione persone. It has been the uniform and consistent jurisprudence of this court since Phipps v. Snodgrass, 31 La. Ann. 88, that such an objection must be formally taken in limine, and by way of exception, and passed upon by the court before answer is filed. The case of Jacobs v. Frere, 28 La. Ann. 625, cited and relied upon, is of the old regime, and was in effect overruled, quite as well as those cases which are enumerated in the one just quoted, and those mentioned in Marqueze v. Le Blanc, 29 La. Ann. 194, and Board v. Weber, 30 La. Ann. 595. It is too late for such an objection to be made now, particularly by way of argument.
2. On the merits the only question presented by this voluminous record of 1,300 pages is, what was the state of accounts between Milliken, the defendant, and Kehlor Bros., garnishees, on the 27th of February, 1883, when the citation was served? The discussion of this question cannot be better prefaced than by a brief statement or outline of the several contracts of these parties, and of their acts and transactions thereunder. It appears from the record that the defendant, John T. Milliken, made, in the city of St. Louis, several contracts to deliver corn f. o. b. in New Orleans, to the agents of Kehlor Bros., garnishees, on account of which contention has arisen in regard to the balance due Milliken in the garnishees' hands. Those contracts were substantially of the following tenor, viz.. First, on the 26th of December, 1882, the defendant contracted to deliver to Kehlor Bros. 50,000 bushels of No. 2 white corn, f. o. b. in New Orleans, on the 26th of February, 1883, at 56 cents per bushel, they engaging to advance 51 cents per bushel on bills of lading and insurance certiticates annexed; second, on the 12th of January, 1883, the defendant contracted to deliver to Kehlor Bros. 50,000 busbels of No. 2 mixed corn, f. o. b. in New Orleans, on the 26th of February, 1883, at 56 cents per bushel, they agreeing to advance 53 cents per bushel, the defendant “retaining the privilege of substituting No. 2 white mixed;" third, on the 15th of January, 1883, the defendant likewise contracted to deliver to Kehlor Bros. 30,000 bushels of No. 2 mixed corn, at 56 cents per bushel f. o. b. in New Orleans, on the 15th of March, 1883, they agreeing to advance 53 cents per bushel upon a St. Louis inspection, or 50 cents on a New Orleans inspection; fourth, on February 1, 1883, the defendant likewise contracted to deliver to Kehlor Bros. 50,000 bushels No. 2 white mixed corn, at 58 cents per bushel f. o. b. in New Orleans, on the 31st of March, 1883, they agreeing to advance 55 cents per bushel.
The total amount of corn deliverable by the defendant under all of these contracts was 180,000 bushels, and under his contract with Gomilla & Co., 62,000. For the fulfillment of these contracts maturing on the 27th of February, 1883, the defendant had purchased from farmers in Kentucky and Illinois, along the Ohio river, and in the vicinities of Mt. Vernon and Paducah, a quantity of corn in the month of January, 1883, and with it certain barges were laden for shipment to New Orleans; and those barges were combined together into a tow, which the steamer Ravin carried to New Orleans, at which place she arrived on the 27th of February, 1883, in ample time to make February deliveries for foreign exportation. There seems to be no question of the timeliness of this delivery, as it clearly appears that delivery was made directly from the Ravin's tow into the out-bound steamer Henry Anning, and that the process of delivery was continued until 12 o'clock m. on the night of February 28, 1883, and that it was at that time suspended on account of a want of adequate ship-room. There were five barges, which constituted the Ravin's tow, and their names were, respectively, Bessemer, Brook bank, North, Crescent City, and H. B. Smith. It appears that, upon each of these barges, there was a shortage in the quantity of corn, when a comparison is made with their bills of lading.
The following statement substantially exhibits the different amounts that were actually delivered, or the shortage supplied as the equivalent of a delivery under contract, viz.:
Per barge Bessemer,
The aggregate amount being 97,614 37-56. .
In addition to these deliveries there was of the cargo of the Crescent City 5,583 12-50 which were alleged to have been damaged in transit; and of the cargo of the H. B. Smith there were 10,924 38-56 bushels likewise alleged to have suffered damage while in transit. These two quantities amount to 16,727 38-56. This damaged or condemned corn did not constitute a part of Milliken's delivery under his contract, because it was rejected by Kehlor Bros.' agents, Petit & Lawler, as not coming up to the requisite grade, No. 2. Consequently it did not pass through the elevator on ship-board, but was placed in a bin to itself, was subsequently surveyed and condemned, and passed, irregularly, into the possession of Kehlor Bros., and was by them disposed of for their own account. A reason for this will appear in a subsequent part of this opinion. Thus it appears that there came into the possession of Kehlor Bros., including shortages accounted for, 114,342 13-56 bushels of corn; that the actual anjount shipped was 115,790; and that the shortages not accounted for aggregated 1,447 33-56. With regard to these figures and data there is, practically, little difference of opinion; but there is quite a serious disparity of opinion as to the proper deduction to be made from them and the surrounding circumstances, which were detailed at great length, by different witnesses, and particularly with reference to their effect upon Milliken's rights and liabilities in respect to the garnishees and plaintiffs, and his balance in the former's hands at date of seizure. Therefore it becomes necessary to state these opposing views as concisely as practicable, because it is upon a correct solution of them that the most difficult problem in this case depends. The district judge held, and we state his view, because the appellees rest exclusively upon it, in effect, that the 97,614 31-56 bushels of corn, which were discharged from the Raven's tow, were delivered to Kehlor Bros. under the defendant's first two contracts, which matured on the 27th of February, 1883, and to be paid for at 56 cents per bushel; that the 16,727 38-56 bushels, which were alleged to have been damaged in transit, were not delivered under any contract, but having been taken possession of by Kehlor Bros., and sold for their own account, they must be settled for upon a different basis; and that, a sufficient amount of the proceeds being first applied to the payments of the defendant's shortage of 2,387 19-56 bushels, the residue should be credited to Milliken's account as of the date February 27, 1883.
His theory as to the method of making this settlement is that the claim set up by Petit & Lawler, with regard to the damage which this lot of corn has sustained, having been made known to the defendant, he instructed Kehlor Bros. to sell all that did not come up to grade No. 2 in the New Orleans market, and credit him with the proceeds; and, inasmuch as that class of corn has advanced in that market, be charged Kehlor Bros., in settlement, 68 cents per bushel,--holding that the proof did not sanction the charge of damage, and that they were responsible for the current market value in New Orleans at the date of their appropriation. His theory is, further, to the effect that plaintiffs' garnishment of February 27, 1883, held the entire proceeds of the Raven's tow of corn, ascertained as above stated, under the terms and conditions of the defendant's tirst two contracts, and reached the subsequently ascertained results thereof; that the defendant's contracts going to maturity on the 15th and 31st of March thereafter were not to be taken into account in effecting a settlement between Milliken and Kehlor Bros.; and that, as a necessary consequence, the surplus to Milliken's credit on his matured contracts could not be held by Kehlor Bros. as a security for any default or nonmatured contracts, each one of said four contracts being independent of the other. Per contra, the theory of the garnishees is that the 16,727 38-56 bushels formed a part of defendant's delivery under his three contracts,—the two maturing February 27th, and the one maturing on the 31st of March, 1883-indifferently; that the entire cargo of the Raven's tow, as well as that on barge No. 21, which had not then arrived, should be taken into consideration in the adjustment of defendant's account with them; and that, being thus adjusted, there would be nothing remaining to his credit. It is further to the effect that on the 27th of February, 1883, the very day on which plaintiffs' first garnishment was served, the defendant made default on his two contracts maturing on the 15th and 31st of March following, for the entire balance due thereon, and the legal consequence thereof was to mature the balance due them on all the contracts as of that date, and entitled them to hold any surplus there might be in the defendant's favor.
In determining this controversy, very much depends upon the precise status of these respective contracts at the tinie the garnishment was served. It will therefore be necessary for us to examine and analyze, in a general way, such portions of the evidence as bear upon it. But, before proceeding therewith, it is well to premise that the principal contention in the lower court seemed to have been whether the alleged default of Milliken was simulated or bona fide. The district judge held it to have been fictitious and simulated; but, in our opinion, there are other data which are perfectly conclusive with regard to the effect of the default, conceding it, arguendo, to have been serious and bona fide. In treating of them, we assume, as a clear legal proposition, that the four contracts were, in the beginning, distinct and different; that, upon defendant's fulfillment of either of them at its maturity, he was entitled to a settlement thereof, and to receive the net proceeds, less disburse. ments, from the consignees; and that the plaintiffs could take the same by garnishment; further, that if the defendant's default on further contracts did not occur prior to the said fulfillment of the one that had matured, the contractee could not defeat a seizure of a balance in his hands by a creditor of the contractor.
It is a fact disclosed by the evidence that the garnishment was served at five minutes to 3 o'clock on the 27th of February, 1883, in the city of New Orleans, and that the alleged default of Milliken occurred about 5 o'clock on the same day, in St. Louis. It is fully shown by the four telegrams of that date by Kehlor Bros., addressed to Petit & Lawler, their agents in New Orleans, that they know and had advised plaintiffs to garnishee Milliken's balance in their hands, for the purpose of protecting the cargo of corn from plaintiffs' anticipated sequestration. On the same day Petit & Lawler telegraphed their principals of the service of the garnishment upon them. Both the principals and the agents being possessed of this information, it was the uuty of Kehlor Bros. to have clearly proven that Milliken's default occurred at an earlier hour of the day than the service of the garnishment, if such was the fact; because, under the jurisprudence of this court, the hour of the day is attended to in determining the priority of conflicting seizures which confer privileges on the property seized. To oust a seizure altogether, in the manner proposed by the garnishees, and for their own benefit, proof equally efticacious should have been administered. Tufts v. Carradine, 3 La. Ann. 430.
It was a fact well known to Petit & Lawler that this service was made at five minutes to 3 o'clock on the 27th of February, and that was the knowledge of their principals; and it was likewise well known to both that the Raven's tow was at that time in the port of New Orleans, and the cargo of corn in process of delivery, under defendant's contracts inaturing on that day. In furtherance of this theory, we have the telegram from Kehlor Bros. of that date to Petit & Lawler, stating: “Gomilla garnishees us for the amounts belonging to Milliken in our hands, Accept for us, and answer for us that we have balance due him on corn in New Orleans, exact amount not ascertained, but estimated to be about $4,500.” This telegram was sent to New Orleans prior to Petit & Lawler's notification of the service of the garnishment. Milliken also appears to have been fully advised of the arrival of the Raven's tow in New Orleans, and the delivery of her cargo to Petit & Lawler prior to his alleged default, because he says, in his written notice to Kehlor Bros., “that I decline to deliver to you any more corn on my several contracts.” This language clearly implies that a delivery had been made of some corn, and the cargo by the Raven's tow is the only corn at that date of which any account is given in the record. It is therefore perfectly manifest that his default had relation to his contracts maturing on the 15th and 31st of March, 1883.
This theory is further confirmed by the letter written by Milliken to Keblor Bros., under date of March 12, 1883, prior to the maturity of either of the last-named contracts, which says: “By steamer Raven and barges, I delivered to you, in New Orleans, prior to the 27th of February last, 111,000 bushels of corn, under my contract with you, accepted prior to that date. I also placed on board barge No. 21, at Cairo, Illinois, 24,000 bushels of corn, which you have not ordered down the river.” This letter was introduced in evidence by the garnishees, and is one of the documents which is relied upon as proving the bona fides of Milliken's default. Comment on this evidence is hardly necessary. To one thinking, it points unerringly to one conclusion, and that is the fulfillment and completion of the two contracts falling due on the 27th of February, 1883, prior to the defendant's default on other contracts, and prior to the service of the garnishment on that date on Kehlor Bros., and to there being a balance in their hands to Milliken's credit of $4,500 on that date. This conclusion seems to be irresistible, when we take into consideration the fact that the garnishees got possession of nearly 12,000 bushels of corn more than they were entitled to receive under those contracts, to the detriment of Gomilla; that they garnished that balance at Kehlor Bros.' suggestion; and that this defense is set up by them, as against Gomilla & Co., with the undisguised object of consuming that balance in a settlenient with the defendant, and to the injury of Gomilla & Co., and against the sworn protest of Milliken.
Counsel for garnishees, in the course of their argument, and in their briefs, frequently referred to the fact that the cargo of the Raven's tow was 12,000 or 15,000 bushels in excess of the 100,000 bushels which were deliverable under the defendant's February contracts, and to the 24,000 bushels on board the barge No. 21, as proof incontestable of these deliveries being common to and on account of all four of the contracts; and from this assumption argue that they had thus become merged and indistinguishable, and hence all were affected alike by defendant's default. This argument is wholly untenable. We have no doubt of it having been the original intention of Milliken to make the shipment by the Raven's tow for the joint account of Kehlor and Gomilla; but, becoming embarrassed in his negotiations for and the purchase of the corn from the farmers, he found himself in such a situation that he could not carry all of his contracts to their maturity, and he chose to fulfill the larger ones to the garnishees, and to default on the smaller one to the plaintiffs. From the proofs above cited, it is perfectly clear that the cargo by the barge No. 21 did not arrive for many days subsequent to all of these transactions, and does not, in any way, appertain to their consideration. On the whole, we think it fairly demonstrated that the status of Milliken's account with the garnishees was not affected by his default.
While it is true that we have arrived at this conclusion by a slightly different process from the one employed by the judge a quo, it is in no wise to the detriment of the latter. We felt constrained to place our opinion on this