Brownson v. Fenwick

19 La. 431 | La. | 1841

Bullard, J.

delivered the Opinion of the court.

The plaintiff sues to recover the amount of a promissory note, which is not contested, and the further sum of $829 95, Upon the following allegations. That in 1835 he employed the defendant as his agent, to purchase for him in Maryland a 'certain number of slaves, and furnished him funds for that puf¿ p0se< ¿efen¿ant purchased several slaves for him* aild paid for them with his funds, and on his return to Louisiana delivered them to him, informing him in the meantime, that a certain negro man, named Dennis, whom he said he had purchased for the plaintiff of the estate of Leo Fenwick, had made his escape on his way from Maryland to Louisiana, and that he had cost $800, of all which the defendant gave a written certificate ; by which he also declared, that he had settled with the plaintiff for the price and expenses amounting to $829 95. tie further alleges, that he has ascertained, that the defendant never made any sudlx purchase as was represented by him, that Dennis never was sold to him or to any othef person by the estate of Leo Fenwick, but still belongs to that estate. That the defendant, while in Maryland, was appointed executor or • administrator to the estate. An inventory was duly made of the property belonging to the estate, which includes the negro man Dennis, estimated at $750. That the defendant was put in possession of the property, and was bound to keep the same for the legatees» That being thus in possession, he proceeded to bring them to this State, not as his own, "but for the benefit of the legatees, and that before the escape of Dennis, it never was the intention of the defendant, that he should be the property of the plaintiff. He alleges, that the defendant had thus violated his confidence, and was guilty towards him of gross fraud and deception, and he asks judgment for the amount thus retained, together with interest due in consequence of his infidelity as agent.

The defendant, in his answer, denies all the fatíts and allegations in the petition contained, and avers, that he has faithfully accounted for the nett proceeds of a draft on Lambeth & Thompson, and he specially denies all the frauds charged against him.

There was judgment for the plaintiff and the defendant appealed.

The first question, Which has been presented for Our con-* sideration, is, whether parol evidence was admissible to contradict the written statement of the defendant, which was inr tended to serve as evidence of asettlement between the parties, and of title to the negro Dennis. We are of opinion, that the evidence was properly admitted for that purpose under the pleadings. The plaintiff alleges, that the certificate is false, and that the defendant had deceived and defrauded him. In support of those allegations parol evidence was clearly admissible.

_ Parol evidence contradiction to-, statement™1*im-fen¿e¿ant’as ln~ settlement between the par-. ties, and also of under° & S a*e aIleg"" ^|1^!¶!]av^,, S'1™®4. from himself, or put one of his So as to charge' ¿s^pí-ice °fi And where there was, deception inducing him to settle with the-recover116 hack ^vinlfbeen aN towed in error.

It is contended on the part of the defendant,, that by the laws of Maryland he had a right, as administrator with the will annexed, to take the personal property, including slaves, on. his own account, at the price of estimation,, andithat having by account rendered and approved’ by the orphans’ court, charged himself with the slaves inventoried as the property of his brother’s estate, they became his, and;, he had* a¡ right to dispose-of them. Admit this to.be tr.ue, the difficulty-still remains, by what means did the slave Dennis, become the property of" Brownson, so as to make him. accountable for the loss ?: It is. certain, that the certificate of the defendant does not evens purport to convey a new title to- the plaintiff: The consent of' Brownson personally is nowhere shown to become the owners. Upon the supposition, the most favorable to the defendant, that-having employed the funds of the plaintiff'in payment of the debts due by his brother’s estate, his intention was to. convey-the slave Dennis to the plaintiff; yet no. such agreement is-shown before the loss of the slave. As agent of Brownson>,to^ purchase slaves, he could not purchase one from himself, either-r ... in his personal capacity, or as administrator of the estate of Leo Fenwick. In the case of Beal vs. McKernian, 6 La. Reports, 407,we held, that Beal, the agent to purchase cotton, could not take cotton which he held for sale himself as a commission merchant, to fill the order. No agreement or contract can be , . , , - . - , , , made without the concurrence of two minds, and it is a legal absurdity to say, that Fenwick could purchase as agent for Brownson, from himself. As mandatory it was his duty to pu-rchase on the best terms for his employer; as owner- he would naturally endeavor to get the highest price» — the two are utterly incompatible. We therefore conclude, that Dennis never was the property of Brownson, and the price retained for him by the defendant ought to be refunded as having been al~ lowed in error.

Legal interest demand^on°li-qmdated claims, will be allowed, when the parly delay. ” When a de-wards setup for ingV'out Sof "a read^Ctl°settled between the parties, for whichno charge itais not shown was erroneous* it will he pre-surned the services were gra-

The appellee prays for an amendment of the judgment in his favor, by an allowance of interest on the sum of $829 95; . J according to article 2984 of the Louisiana Code. We think he is entitled to interest at five per cent, from judicial demand only, the sum being liquidated, and he was then first in delay. The defendant, by an amended answer, sets up a claim for $1000 in compensation, of which $750 was stated tobe for services rendered as agent in purchasing slaves in Maryland, an<^ bringing them to Attakapas, and two hundred and fifty dollars for negotiating drafts. This account relates to the same . , transactions, and at the time of the settlement no such charge was made by the defendant. It is not shown, that the settlement was errMleous in that respect, and we are to presume, that the services were gratuitous. No agreement is shown to 0 ° pay commissions.

It is therefore adjudged and decreed that the judgment of the District Court he affirmed with costs, together with five per cent, interest per annum on the sum of $829 95 from judicial demand.