33 La. Ann. 976 | La. | 1881
The opinion of the Court was delivered by
The Citizens’ Bank of Louisiana brought suit against L. Grand, drawer, and Glover & Odendahl, payees and endorsers of two checks, one for $10,000, dated June 2d, 1877, and the other for $5000, dated June 4th, 1877, which checks (with the difference in date and amounts) read as follows: *
“ New Orleans, June 2d, 1877.
“The Cashier of the Citizens’ Bank of Louisiana will please pay Messrs. Glover & Odendahl or order, ten thousand -fife dollars, in part payment of corn bought from them, the same being an advance on exchange, for 40,000 bus. of corn, sold to your bank.”
*978 “The bill of exchange to be furnished complete within five days from date of sale.”
“ $10,000.’ . (Signed) L. Grand.
“(Endorsed and signed) Glover & Odendahl,
per N. E. Bailey.”
Plaintiff seeks judgment against all said defendants in solido for the amount of these two drafts, on the ground that these cheeks were given for exchange to be delivered to them as stipulated in the checks, this exchange being for corn sold by Glover & Odendahl to Grand, to the extent of á0,000 bushels, and that the corn was other than that which had been sold to Grand, shipped on the vessel “Arno”; that Glover & Odendahl, knowing that the exchange thus to be furnished was given for payment of other corn (on which the bank would have a vendor’s lien), applied these checks to the payment of the corn shipped on the Arno, and by endorsing the checks, bound themselves to apply their proceeds as the bank and Grand had contracted in the check. The defendant Grand, although duly cited, filed no answer and put in no appearance in the suit; and no proceedings beyond citation appear to have been had against him.
The defendants, Glover & Odendahl, admitted the receipt of the two checks and the collection of the amount thereof from plaintiffs. They aver that the two checks were given to them »by Grand, in payment of about thirty-one thousand bushels of corn, sold to him by them, and shipped and placed on board the bark Arno and delivered to Grand, after the corn had been laden on board the said bark by these defendants in their own names and for their own account. They denied that at the time said checks were delivered to them, in part payment of the corn laden on said bark or since, they had in their possession or under their control, any corn or other property belonging to said Grand, in whole or in part, in which he (Grand) was interested, either directly or indirectly; they aver that the corn shipped by them on board the bark Alpha and the steamer Yanguard belongs to them, and Grand never had any interest in the same, and the same had never in whole or in part been delivered to said Grand, and the plaintiff well knew this fact, because the plaintiff had been previously so informed in answer to a direct interrogatory propounded by its clerk or agent to these defendants; that, the corn for which said checks were given in part payment of the price thereof, was the corn shipped on the bark Arno as above stated. They reserved the right to sue the plaintiff in a separate action for damages caused them by the illegal seizure of the corn shipped by them on the Alpha and Yanguard, under the attachment and sequestration issued herein, at plaintiff’s suit.
We think the action of the lower court in allowing the substitute of
We can perceive no grounds on which plaintiff’s claim against Glover & Odendahl can be maintained. There is nothing on the face of the checks, nothing in the statements, or so-called stipulations therein, which connect them with any contract or agreement with Grand, that these checks were to be applied to the payment of corn sold, delivered or to be shipped on any particular ship, or which goes to show that'Glover & Odendahl knew anything of Grand’s transactions with the bank in regard to bills of exchange previously purchased by the bank and drawn against the shipment on the Arno. Odendahl testifies positively that these checks were received by his firm “ in part payment of the price of the corn shipped on the bark Arno.’’ In point of fact, the testimony shows that they had sold or delivered, or shipped no com on the Alpha or Yanguard to, or for account of Grand. We are at a loss to perceive how the liability sought to be imposed on Glover & Odendahl can, under all the facts of this ease and by application of any legal rules or principles, attach to them. The clause in regard to the furnishing the bill of exchange has, we think, been properly construed by counsel of defendants in their brief, as referring and applying to the understanding between Grand and the bank, and as being a “reference to the exchange and nothing more than a postscript or memorandum for the information or instruction of the bank.” The bank seem to have put this construction upon it, or if they regarded the furnishing of the exchange as a condition precedent or necessary to be complied with, why did they pay the'check before it had been done?
We find no error in the judgment appealed from, and it is, therefore, affirmed with costs.
