Judice's Heirs v. Brent. VI, N. S. 226.

FIFTH District.

A case of facts. The only point of law decided therein is, that the plea of the general issue is waived by that of payment.

Erwin v. Fenwick. VI, N. S. 229.

Damages cannot be claimed, on a contract to deliver slaves, till the party is in delay, although the day of delivery be fixed by the contract.

The putting the debtor in delay is a condition precedent to recovery, and need not be pleaded in defence.

FIFTH District.

PORTER, J., delivered the opinion of the court.

This action is brought on an agreement entered into in writing, between the plaintiff and defendant, by which the latter promised and obliged himself to deliver at the principal plantation of the former, in the parish of Iberville, twenty slaves, ten of whom were to be males, and ten females, for the sum of 10,000 dollars, payable in notes of the plaintiff, at one and two years.

The petition charges, that the defendant has failed to comply with his agreement; avers that the petitioner was ever ready and willing to perform his part of it; and states the damages at 9,000 dollars.

The answer sets up several grounds of defence, which do not require to be set forth particularly. The issues joined between the parties were submitted to a jury who found a verdict in favor of the plaintiff for 500 dollars. The defendant appealed.

It has been contended in this court, as it was in that of the first instance, that no damages were due to the plaintiff for the breach of the agreement until the defendant was in default (en demeure) by a judicial interpellation, or some act equivalent thereto; that this is an

[Erwin v. Fenwick.]

indispensable act on the part of the obligee of a contract for the delivery of a specific thing, before any claim can be made for non-performance; and that until it is done, the obligor has the legal right to discharge his contract by a specific performance, though the time should have elapsed within which it was to be discharged.

With the exception of the case of Bryant v. Cox, which went off on another ground, this is the first time in our experience that such a defence has been offered, though the cases in which it might have been made frequently presented themselves. It is one which cannot but be felt to have but little relation to the merits of the case, and not likely to promote its equity. Yet so clear and positive is our legislation on this subject, that we have been compelled, though slowly and reluctantly, to come to the conclusion that it must prevail. 3 N. S. 574.

The doctrine on which it rests, like most of the others in our jurisprudence, had its origin in the Roman law. In that system, however, it was limited in such a manner as to meet, in general, the intentions of the parties, and was entirely conformable to reason and common sense. It was confined to those cases, where, by the terms of the contract, no particular time was fixed for the performance, and the necessity of calling on the obligor before there was, in the eye of the law, a breach of his agreement, arose from the consideration that it was presumable it was to be discharged at the demand of the obligee, and not before. From Rome, this principle was carried into France where it was extended to all agreements, whether a certain period was fixed for discharging them or not. The utility and wisdom of such regulations are certainly not obvious to this court. But, considerations of this kind belong to that branch of the government which makes laws, nor that which expounds them. Our legislature have adopted, in its entire extent, the rules which are established in France, and we have no alternative but to enforce them. Toullier, vol 6, lib.3, cap. 3, no. 241.

This contract took place under the dominion of the old Code. The 46th article of that work, page 268, declares, that "damages are due only when the debtor has delayed (est en demeure) to fulfil his obligation; except, however, when the thing which the debtor had obliged himself to give, or do, could have been given, or done, only at a certain time, which he has suffered to elapse."

This article, if it stood alone, would certainly leave it open for construction to say when the debtor was in delay in not performing his contract; and the most obvious interpretation would be, that he was so when the contract had prescribed a fixed period for perforInance, and that period was suffered to elapse without the obligation being fulfilled.

But the law-maker has been careful to exclude any such meaning being attached to these expressions, for in another article it is stated, that "the debtor is considered as having delayed (constitue en demeure) the delivery, after he has been required to deliver, either by

[Erwin . Fenwick.]

summons, or by any equivalent act, or by the effect of the agreement, when it is stipulated, that without the necessity of any act but by the mere expiration of the time fixed, the debtor shall be in default." Civil Code, 266, art. 39.

If, therefore, damages are only due from the time the debtor is placed in default (en demeure), and he be not in default until summoned or called on to perform by some equivalent act, the conclusion is irresistible, that in a case such as this, where he has not been so placed, no damages can be recovered.

The laws of Spain put the debtor en mora from the day the agreement was to be fulfilled, without requiring any act on the part of the creditor. It occurred to us that these provisions might come within a rule we have often applied to the construction of our Code, that subsequent laws do not repeal former ones by containing different provisions on the same matter; that they must be contrary; that the re-enacting general provisions existing in our former laws, and inserting them in our Code did not repeal the exceptions which attended these provisions in the system from which they are taken. Curia Phillipica, lib. 2, cap. 7, verbo Page, no. 7.

But this rule can not benefit the plaintiff in the instance before us, for the mode pointed out by which the debtor is placed in default, is not only different, but contrary, to that prescribed by the laws of Spain. By the provisions in the Code, he is in delay by summons or some equivalent act; or by the effect of the agreement, when it is stipulated that the mere expiration of the term shall put him in default. By the former law, the expiration of the term without any act on the part of the creditor, or any express stipulation in the agreement, put the debtor en mora. Something further is, therefore, now required to be done, and when one law requires no act on the part of the creditor to confer a right, and a subsequent one does, the latter is so far contrary to the former, that a compliance with it is indispensable, otherwise, it would be without any effect whatever.

It now remains for us to consider, and dispose of the objections, which have been made to the exercise of this defence in the case before us.

1. It has been contended, that the defendant can not take advantage of this failure on the part of the plaintiff, on the issues joined that it should have been specially pleaded.

But the putting the debtor en demeure is an act which must precede the recovery. Damages, says the article already cited from the Code, are only due after the debtor is in default. It was not, therefore, for the defendant to show he did not owe. It was the duty of the creditor to allege, or at all events to prove, these facts, without which, he had no cause of action.

2. It has been urged, that, by the terms of the agreement, the parties bound themselves to pay all damages that either might sustain, by a failure of the other to comply with his contract. But here again, the defendant is met by the express provisions of the law,

[Erwin v. Fenwick.]

which only waives the necessity of summons, or other equivalent act, when there is a stipulation that by the mere expiration of the term, the debtor shall be in default.

The judge who tried the cause in the court of the first instance, was of opinion, and so charged the jury, that, there being a time and place fixed by the contract for its performance, the defendant was in default without any act on the part of the creditor. This positiou is as untenable as those we have just noticed. It is true there may be contracts in which the performance, at a particular time, is so important to the creditor, and enters so much into the consideration, that a failure on the particular day fixed for its discharge, will place the debtor in default; and there may be others where performance after the day would be impossible, of which an example may be given, in an agreement to ship goods by a vessel before she sailed, and others of a similar nature. The writers who treat of this matter, properly consider questions of this kind, as of fact, rather than of law. Cum sit magis facti, quam juris. In the case before us, we see nothing which would authorise us to say, that the particular day was so essential to the contract that the mere expiration of the term placed the debtor in default. The place being fixed for performance offers no reason to take it out of the general rule. If the interpretation given by the court below were correct, it would follow, that in every case where a particular time was fixed for performance, the debtor would be en demeure; but the provision in our Code, already referred to, prohibits such a construction, by declaring, that the expiration of the term shall not put the debtor in default, unless the agreement contains a stipulation to that effect. Code, 269, 39; Paillette on art. 1146 of Nap. Code; Pothier on Ob. 162, 146; Toullier, Droit Civil Francais, vol. 6, lib. 3, cap. 3, no. 250.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed, that there be judgment against the plaintiff as in case of nonsuit, with costs in both courts.

Bowen, for the plaintiff.

Simon, Brownson and Baker, for the defendants.

Abat v. Segura.

VI, N. S. 237.

FIFTH District.

The issue fraud vel non is peculiarly of the cognisance of the jury.

Ponsony v. Debaillon et al. VI, N. S. 238.

In a suit on attachment bond, the plaintiff cannot give evidence of the deterioration of the property, without having alleged it.

The declarations of a party when they make a part of the res gesta, are evidence. When suit is brought on an attachment bond, it is the duty of the obligee to allege and prove the damage he has sustained by a breach of the condition. When the plaintiff claims damages beyond the penalty in the bond, and alleges the attachment was commenced with a view to harass and oppress him, the defendant may give in evidence acts of the plaintiff which induced a belief he was about to remove the property. And in every case the obligee in the bond may prove these facts, which produced the belief that the defendant in attachment was about to leave the state.

What others said at the time, of his intention to remove, may be given in evidence.

FIFTH District.

PORTER, J., delivered the opinion of the court.

This action is brought on a bond given by the defendants, to the petitioner on their suing out a writ of attachinent against him. The case was dismissed, it not being one, of which the court before whom it was brought, had jurisdiction. The petition sets out the bond and the condition, and assigns several breaches or causes of damage, by which, it is averred, the plaintiff has sustained injury to the amount of 2500 dollars, the sum for which the obligation was given.

After setting out these breaches the petition goes on to state, as another breach of the condition of the bond, "that the writ of attachment, aforesaid, issued out in manner and form aforesaid, by the