58 So. 857 | La. | 1912
,This, .suit .was brought in the district court, by plaintiff?, ,tQ -r.ee.Qver from J. L,. Garrett personally subscription .to stock to.,the amount of ,$150 in,, defendants” partnership, and, to. reqpver the price. Qf a horse from the defendant ^partnership, and for a settlement of the partnership.
Plaintiffs bought a horse from a firm in; Tennessee for the sum of $3,000, and, in turn,j sold it to the defendant- partnership. j
In plaintiffs’ petition they allege that after-several years of ownership in March, 1909,; the plalhtiff partnership 'st>ld the'horse to; the commercial partnership of,,J. L. Garrett and W. L. Beqne.for the sum of $975, pay-| able in three installments. ‘‘ ;
The defendant -firm-, -either - forgot or neglected to pay for the ánimal:
It .is also, in substance, alleged'that on; t,hk day. qf,.the;..sale' qf, this horse,the part-! 'nérship'-,came¡'1to!lian'iend,':'but its1 ■ affairs';re-| niaíned unsótiié.d-’. Blaintiffs\al?P,; allege, that JbLJ Garrett■>owes -the;'partnership1 $150,' stock of ,thq partnership..,subscribed.,.to,by ■bim: - -..... • : ........ •- = '<■ - ’■ ' ■■■ : '
Defendants in the first place filed an exception on the ground that the personal claim made of J. L. Garrett could not he cumulated with plaintiffs’ other demands against the defendant partnership, and asked for the dismissal of this demand.
The district court sustained the exception, and dismissed the demand.
Thereafter defendants filed an answer and a plea of estoppel. The cause was heard, "and the plea of estoppel was maintained. In the course of the trial which resulted in the dismissal of one demand on the exception, as before stated, and then the dismissal of the other demand after having heard the case on the merits, evidence was introduced during the trial of a suit brought by tlie transferee of the Tennessee firm, to wit, the Phoenix National Bank, for the balance due on the price of $3,000, above mentioned. The defendants in that suit were the members of the plaintiff firm, consisting of 14 partners. These defendants must have beeii under'the impression at first that the horse did not come up to the value, which the first vendor 'represented it was worth. They alleged that it was valueless. In their answer ’they further alleged that the first descendant of this horse after they had be’ebme It's owner had striped white legs and a* glass ’eye, which has a special meaning ‘with-'thbse who raise horses and cattle.
The defendants tendered back the horse, knd'allégéd that they would not be responsible for iti'
It'’must be remembered that all joined in this defense, the 12 plaintiffs above and the defendants as well who were all members of one partnership at the time. These partners did'not insist’upon their defense. They confessed ’judgment, and we infer that the balance1 of'’the price was paid.
In the first suit before alluded to the plaintiffs and defendants, although they had sold the worthless horse to the defendant, alleged as if they were still the unfortunate owners of a worthless animal. This was not true. Defendant who was a, party to the representation none the less urged it as a ground of estoppel. The horse was, we infer, an expensive burden on the hands of all parties when the suit of the Phcenix Bank was brought to recover the balance due on the $3,000 note.' The result was that the plaintiffs and defendants, all members of the old partnership,, joined ,in. seeking relief from their ownership: Pegasus had become an elephant on- their hands. Anything to get rid of him; Of course, the allegations were all wrong, and -should not have been made. But it must be remembered that plaintiffs and defendants joined in these allegations. It happened that they misled no one. The bank recovered the price after the defense had been abandoned and the judgment confessed, as before stated. No one is to be benefited among the partners. They stand together, and for that reason we do not' think there is estoppel whereby the defendant is to be relieved, and the plaintiff made to lose the value of the horse, if any he had. It is not in the least our intention to add to the merits of the case, if it has any, or to take anything therefrom. We only decline to sustain the estoppel pleaded and leave the parties in interest (with all their rights of attack or defense) to finally settle all claims. The case is before us on an application for a writ of certiorari.
For reasons stated, it is ordered, adjudged), and decreed that the judgment of the district, court and the judgment of the Court of Appeal are avoided, annulled, and reversed, and the ease is remanded to the district court to be proceeded with according to law, and the question who shall pay the costs be made to abide the final decision of the court, that the writ of applicant is granted and affirmed to the extent before mentioned.