Blanchard v. Cole

8 La. 153 | La. | 1835

Mathews, J.,

delivered the opinion of the court.

This is a case of attachment, in which M. & P. Maher were cited as garnishees, and interrogated as to property in their possession, belonging to the defendants, and also as to their indebtedness to him. The interrogatories were put not very formally, and the responses to them were not made in a manner so precise and categorical as they might have been. The court below rendered judgment against the defendants, and condemned the garnishees to pay the amount. From this judgment the latter alone appealed ; consequently, the decision of that court is here to be examined only so far as it affects the interest of the garnishees.

We find on the record two bills of exception taken by the counsel of the garnishees: one to the opinion of the judge a ?M0> by which he admitted parole testimony of a fact which ought regularly to have appeared by entry on the minutes of his court; the other, to his refusal to admit in evidence the record of a suit, offered to show that funds had been attached jn their hands, to a large amount, by another person, . ° J r assuming to be a creditor of the defendants, Cole & Co. previous to the attachment now in question. As to the first of these exceptions, it appears to us to be somewhat novel to allow oral evidence to establish facts which ought regularly to appear of record; but as the fact allowed thus to be proven, seems to have had no influence with the court in its final decisión of the cause, it needs no further notice. As to the second we are unable to discover what bearing on the case the record offered in evidence can have, according to the pleadings ; and if it can have none,' it was properly rejected as irrelevant.

Garnishees cannot offer the papersofasuitby in*ridenra°0to show tlie *\me property lias been attached m lliUllls-

_ . , . . , . „ , in coming toa decision on the merits of the case, some embarrassment is found, caused by the want of technicality in which it seems to have been conducted in the court below. rru . _ 1 he garnishees appear to be partners of a factorage or commission house, and their answers are sworn to by one them alone. ■ After having answered in the first instance, they by leave of the court, filed a supplemental and explanatory answer. This explanation or amendment was introduced, late in the cause, but being before any action of the court, in relation to the interest of the garnishees, it may be considered as having appeared in time ; at all events, it does not seem to have been opposed by the plaintiff. We will-therefore consider the two answers as an entire thing, or as constituting a whole.

The answers contain a denial of funds belonging to the defendants in the hands of the garnishees, except some smoaked beef and a few other articles which are stated to be worth three hundred and ninty-nine dollars fifty cents. They do not expressly deny being indebted to him, but allege that they are largely indebted to the respondents, and in support of this allegation they annex to their supplemental' answer accounts of sales and an account current, showing a balance in their favor of seven thousand one hundred and fifty-four dollars seventy-one cents. From this statement it is seen that these answers are not technically categorical, but taking the facts disclosed in them as true, they show, that Cole & Co. were indebted to the garnishees in the sum of ten thousand three hundred and fifty-one dollars, the greater part of which sum was due at the time of levying the attachment; much the largest portion of this amount appears to be owing to them as legatees of a deceased brother.

The amount owing by them to the defendants appears to be upwards of three ■ thousand dollars, independent of the property on hand of the value of three hundred and ninety-nine dollars and fifty cents.

Garnishees cannot plead an open account, in compensation of the value of the debtor’s property in their hands, at the time it is attached by the creditor. Compensation is of three kinds: legal or by operation of law; compensation by way of exception, and by re-convention. Garnishees cannot set up a demand in compensation against the defendant, in the suit which does not take place by the mere operation of law.

According to these premises, we conclude that a correct decision Of the case depends mainly on the doctrine established by our jurisprudence, in relation to compensation by mere effect. of law. As regards the property of the defendants in the possession of the garnishees, at the time of levying the attachment it is clear that no compensation could take place, consequently it is subject to the claim of the attaching creditor. Respecting the money, reciprocally owing between the defendants and ihe garnishees, we have entertained perplexing doubts.

Compensation may be divided into three kinds : legal compensation or that which produces its effect ipso jure ; compensation, by way of exception ; and compensation by way of reconvention. 7 Toullier, No., 347.

It is the first of these kinds of compensation which we have alone to examine in the present case.

The general rules which must direct us in this examination, are those established by the Louisiana Code. The article 2204, declares that “compensation takes place of course by the mere operation of law, even unknown to the debtors; the two debts are reciprocally extinguished, as soon as they exist simultaneously to the amount of their respective sums,” article 2205. “ Compensation takes place only between two debts, having equally for their object a sum of money, or a certain quantity of consumable things of one and the same kind, and which are equally liquidated and 'demandable.”

By the account exhibited in answer of the garnishees it is shown that their claim against the defendants, to the amount of nine thousand three hundred and ninety-seven dollars, is liquidated by promissory notes of the latter and conventional interest thereon, whilst the credit allowed to them appears only by an unsettled account, in which the former assume the place of debtors to the amount specified therein.

This account being rendered by them would be available for the defendants, as compensation by way of exception, if the garnishees were plaintiffs in an action; because it wants nothing but the assent of the creditors to its correctness, to make it certain and liquidated. Without such assent either express'or implied it is devoid of the requisites, certainly as to quantity at least, and therefore is not liquidated in such a man ner as to produce, compensation by the mere operation of 1 *■ * * * IciW.

So, -where the garnishees owed the defendants a c^nTofCsales" and for property on hand, and set up a demand fo/notes^d^ní teresl due them, as legatees of their deceased brother : field, that this debt is not extinguished by compensation between them and the defendants, and the property and funds in their hands must be considered as liable to the plaintiff’s attachment against the defendants*

The garnishees, consequently, appear before us as debtors to Cole & Co. to an amount largely exceeding the claim of 1 . . . „ , . , °, , the plaintiff, and as this debt is not extinguished by compensation between them and the defendants, it must be considered as the property of the latter, liable to be taken at the suit of their creditors, who are entitled to profit by their vigilance in opposition to the interest of the less careful and vigilant.

In support of the doctrine assumed in this decision, reference may be had to 7 Toullier, Droit Civil, Nos. 369 and 370.

It is readily seen that the principles on which this case is decided, have no relation to those which would govern in cases respecting the rights and privileges of factors, to retain funds in their hands to satisfy their legal charges and advances made on the credit of property, consigned to them as commission merchants.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.