10 Rob. 402 | La. | 1845
This suit is brought to recover of the defendants, former joint owners of the steamboat Hudson, the value of seventy six and a quarter cords of wood, sold and delivered to them for the use of the boat, in November, 1840. George Heaton, one of the defendants, pleaded the general issue, prescription, and the want of an amicable demand. There was a judgment below in favor of the plaintiff against Heaton, and he appealed.
The prescription relied on by the appellant is that of one year, established by article 3499, this suit having been brought only on the 15th of May, 1843, about two years and a half after the delivery of the wood. The following article, 3500, provides that this prescription takes place, although there may have been a regular continuance of supplies, &c.; and that it ceases to run only when there has been an account acknowledged, a note, or a bond, or a suit instituted. The record shows that, on the
The appellant’s counsel has contended that after the dissolution of a partnership, one partner cannot, by any acknowledgment of a debt barred by prescription, revive the same, and •create a new cause of action binding against his co-partner. This, we believe, to be true ; but the inquiry is, whether the plaintiff’s elaim falls within the prescription of one year under the articles above mentioned? We think that it does not. This short prescription ceased, in our opinion, to run from the date of the receipt given by the captain of the boat, who, quoad hoc, was the agent of the owner. Although this paper does not contain a statement, or account of the dates of delivery, the ■prices, &c., it is such a written acknowledgment or settlement for the quantity of wood delivered up to that time, as renders Inapplicable the prescription invoked by the appellant, and places the claim upon the footing of any other personal debt. According to the commentators on the articles of the Napoleon Code, corresponding to those above quoted, the short prescription therein established, is based on a presumption of payment. In agreements which are usually made verbally, and in which cash is generally paid, it is not unreasonable to suppose, after a certain lapse of time, that the obligations resulting from such agreements have been satisfied; but this presumption does not exist where the creditor has a title, or written acknowledgment from his debtor. 2 Troplong on Prescription^ Nos. 943 and
Judgment affirmed,
In the latter part of the month of November of that year.