Bell v. Short & Co.

No. 2815.

CHARLES BELL v. R. H. SHORT & CO. BATTLE, THORN & Co., Garnishees.

Where, on execution being issued in this case, Battle, Thorn & Co. were made garnishees by addressing the citation to said firm and serving the same on H. A. Battle, a member thereof, who answered the interrogatories under oath, but signed the name of the firm to the answers, instead of signing his own;

Held-That the answers were sufficient and that the interrogatories could not be taken for confessed. He answered in the precise name in which he was cited. If the plaintiff wished him to sign his individual name to the sworn papers, the citation should have been addressed in that name.

The answers were under oath, and could, if untrue, subject the garnishee, H. A. Battle, to a prosecution for perjury. This is the test.

PPEAL from the Sixth District Court, parish of Orleans. Cooley, Given Campbell, for plaintiff and appellee. J. M. Coon and Semmes & Mott, for R. H. Short, appellant. E. Woolridge, for Battle, Thorn & Co., appellants.

TALIAFERRO, J. In the case of Charles Bell v. R. H. Short & Co., just decided on appeal, the plaintiff having judgment in his favor in the court below, issued execution and caused garnishment process to issue against the garnishees in this case.

Their answers being made to the interrogatories propounded to them, a rule was taken by the plaintiff against them to show cause why the interrogatories should not be taken pro confesso. The rule being made absolute the garnishees appealed.

We think the court erred. The answers are concise but clear and explicit; and we think fully responsive to the interrogatories.

It is therefore ordered and adjudged that the judgment of the district court be annulled, avoided and reversed. It is further ordered that judgment be and is hereby rendered in favor of the garnishees, the plaintiff and appellee paying costs in both courts.

ON APPLICATION FOR A REHEARING.

WYLY, J. The plaintiff having judgment against the defendants for $1048 46, issued execution and made Battle, Thorn & Co. garnishees by addressing the citation to said firm and serving the same on H. A. Battle, a member thereof, who answered the interrogatories under oath, but signed the name of the firm to the answers, instead of signing his own.

On motion the answers were decreed insufficient and the interrogatories taken for confessed.

From this judgment the garnishees appeal.

We think the court erred. The answers are clearly responsive to the interrogatories. As to the objection that H. A. Battle signed the

Bell v. Short & Co.

firm name to his sworn answers instead of his individual name, wethink that is no reason why his answers should be rejected and the interrogatories be taken for confessed.

He answered in the precise name in which he was cited to answer the interrogatories. If plaintiff wished him to sign his individual name to the sworn answers the citation should have been addressed in that

name.

But after all the test is, were the answers under oath; and would they, if untrue, subject the garnishee, H. A. Battle, to a prosecution for perjury? In our opinion they would.

It is therefore ordered that the judgment heretofore rendered by this court remain undisturbed.

Rehearing refused.

2909.

R. SEMPLE YOUNG v. SCOTT & CAGE AND C. CAVaroc.

A factor can not secure his individual creditor by pledging the planter's cotton which has been confided to him for sale. That power is not conferred by act No. 150 of the acts of 1868, entitled "An Act to prevent the issue of false receipts or bills of lading and to punish fraudulent transfers of property by cotton presses, wharfingers and others." There is nothing in the statute showing any intention of the legislator to enlarge the powers of factors, or to give them the right to pledge the property confided to them for sale.

PPEAL from the Fourth District Court, parish of Orleans. Théard,

APPEAL from ties and F. Fuselier, for Cavaroc, appellant. Hays d

New, for Scott & Cage. Labatt & Aroni, for plaintiff and appellee.

WYLY J. About the twenty-sixth of December, 1869, Scott & Cage, cotton factors, received from the plaintiff sixty-four bales of cotton for sale, he not owing them anything. On the twenty-ninth they suspended, and on the same day pledged the cotton to their creditor, C. Cavaroc, or C. Cavaroc, president of the Bank of New Orleans. The plaintiff sequestered the cotton, and it was subsequently released on bond.

The court gave judgment for the plaintiff, recognizing his ownership of the property and maintaining the sequestration.

From the judgment C. Cavaroc appeals.

The question is: can a factor secure his individual creditor by pledging the cotton of the planter which has been confided to him for sale? We think not. This court has frequently decided that the factor can not pledge, or give in payment of his own debts, property intrusted to him for sale. 17 La. 166; 1 An. 74; 19 An. 300.

But the appellant contends that that power is conferred by act No. 150 of acts of 1868, entitled "An act to prevent the issue of false re

Young v. Scott & Cage and Cavaroc.

-ceipts or bills of lading, and to punish fraudulent transfers of property by cotton presses, wharfingers and others." If such a power were conferred by that act it would be void, because it is not covered by the title. Constitution, article 114. But we do not consider that act should be interpreted as contended for by the appellant.

It is the intention of the lawgiver which we must seek out and give effect to; and there is nothing in the statute showing any intention to enlarge the powers of factors or to give them the right to pledge the property confided to them for sale.

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

Rehearing refused.

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No. 4532.

WILLIAM J. RUSK, Administrator, v. WARREN, CRAWFORD et als.

Where there is community between husband and wife, the husband is the head of it, and is responsible for the debts of the community. The death of his wife does not deprive him of the right to make bona fide settlements for the payments of the debts of the community, nor do such settlements novate the debts as to the community. The community property is liable for the community debts.

PPEAL from the Seventh Judicial District Court, parish of Avoy

A Pelles. Butler, J. Waddill & Barbin, for plaintif and appellant.
Α

Irion, Cullom & Walsh, for defendants and appellees.

LUDELING, C. J. The debts, which are the basis of the judgments injoined in this suit, were created during the existence of the community of acquets and gains between N. R. Selser and his wife, Martha Stampley. After the death of his wife, he continued to control and administer the property of the community, without any administration upon the succession of his wife. While thus controlling the community property after the death of his wife, he renewed the notes given by him during her life, and subsequently the holders of the notes obtained judgments against him individually; and, having seized and sold his undivided interest of the community property, they caused the other half interest to be seized to satisfy said judgments. In the meantime, one of the heirs of the deceased wife was appointed administrator of the succession, and he has injoined the sale.

The plaintiff in injunction contends that by taking new notes and judgments thereon against the husband personally, after the death of the wife, the debts were extinguished by novation. We do not think so. The husband was the head of the community and he was responsible for the debts of the community; the death of his wife did not deprive him of the right to make bona fide settlements for the payment of the debts

Rusk, Administrator, v. Warren, Crawford et als.

of the community, nor did such settlements novate the debts as to the community. The community property is liable for the community debts. Lawson v. Ripley, 17 La. 274; 23 An. 424.

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

No. 2844.

M. N. RADOWITCH v. A. H. SIEWERD and als.

Where it was established that the plaintiff, master of a boat, was authorized by his employer the captain of the boat, to collect freight bills of a certain amount which he held, with the understanding that said plaintiff accepted said amount of bills in settlement of his wages amounting to four hundred and sixteen dollars and fifteen cents, and advances to his employer amounting to two thousand dollars, and that said employer or the boat would make the amount of the bills good, if they could not be collected, and where it was admitted that plaintiff collected one thousand and thirty-eight dollars and thirtyfive cents;

Held-That of the sum thus collected there should have been imputed the amount due for the payment of plaintiff's wages, as the privileged claim.

A

PPEAL from the Seventh District Court, parish of Orleans. Collens, J. Bentinck Egan, for plaintiff and appellee. Albert Voorhies, for defendants and appellants.

TALIAFERRO, J. The plaintiff sued the defendants, Siewerd & Kip, in solido, for seven hundred dollars, being, as he alleges, for wages due him as master of the steamer A. G. Brown, owned by the defendants. These services he alleges were rendered from the twenty-first of October, 1868, to the twenty-ninth of December of the same year, when he was discharged by the defendants without good cause. He claimed a lien and privilege on the boat and caused her to be sequestered.

A judgment by default was entered against Kip, which was made final on the twentieth of February, 1869. A fi. fa. was issued against Kip, which was returned nulla bona. To the petition sued on Sie werd the defendants answered on the twenty-sixth of January, 1870. But on the sixth of March, 1869, after the default judgment was made final against Kip on the twentieth of February, 1869, both defendants filed a suit in the Seventh District Court to annul that judgment. On the third of April following they filed a supplemental petition for an injunction to restrain execution from issuing against them.

This contestation went on until the twenty-first of January, 1870, when judgment was rendered annulling the judgment of twentieth of February, 1869, against Kip; but the decree restored and reinstated ́the proceedings in that case to the status they were in on the eighteenth of January, 1869, carrying things back to a period anterior to the time of the final judgment against Kip, thenceforth to be proceeded with according to law and the rights of the parties.

The defendants answered in the original suit, as we have seen, on

Radowitch v. Siewerd and als.

the twenty-sixth January, 1869, denying the allegations of the plaintiff, and specially alleging that the plaintiff's services, as master of the "A. G. Brown," were rendered to Captain Bassett, who had previously chartered the boat, to the knowledge of the plaintiff; that plaintiff and Bassett had entered into partnership in running the boat, and that the plaintiff had contracted with Bassett to render the services he claims to have rendered. They deny that they ever assumed to pay this debt due by Bassett, or that they are in any manner bound for it. There was judgment for the plaintiff for the sum of $465, and the defendants have appealed. We find the facts to be that Bassett chartered the "A. G. Brown" on the twenty-fourth January, 1868, for one year, to run from the first of February, 1868, to the first of February, 1869. On the twenty-sixth of October, 1868, Bassett and the plaintiff, Radowitch, entered into a contract containing various stipulations, among them, one by which Bassett bound himself to employ Radowitch as master of the steamer, and to pay him for his services in that capacity the sum of two hundred and fifty dollars per month, to the first of February, 1869. About the first of January, 1869, the A. G. Brown, by collision with another steamer, went down, and proved a total loss. On the eighteenth of January, 1869, a settlement was made between Bassett and Radowitch. The latter, upon entering into the contract with Bassett, to which we have adverted, loaned the latter $2000. The sum of $464 15 was fixed as the amount of wages due the plaintiff. It was arranged that Radowitch should take for collection, to pay himself, fifty-seven freight bills due the boat. The written act of the parties in relation to this matter is in these words: "NEW ORLEANS, January 18, 1869.

"I hereby authorize Captain M. N. Radowitch to collect freight bills which he holds, to the amount of twenty-four hundred and sixty-four dollars and fifteen cents, of the steamer A. G. Brown; the condition of this receipt is, that Captain Radowitch accepts the above amount in bills in settlement of wages and advances to Captain Bassett on steamer A. G. Brown. It is also understood that any errors or bills that are not collectable in above amount, said Bassett will make good, or steamboat A. G. Brown.

"(Signed)

A. P. KIP,

O. CANTON,

W. S. BASSETT.
M. N. RADOWITCH."

It is important in adjusting this controversy to ascertain the preponderance of testimony in regard to the true intention of the parties in making this settlement and as to the manner its terms were carried out.

A considerable amount of testimony was taken regarding the value and availability of this lot of freight bills. Radowitch presented a tabular statement of the amounts he collected and of the amounts not paid. He is very clear and direct in his testimony that he collected