18 La. 6 | La. | 1841
delivered the opinion of the court.
This is an action in which the plaintiffs seek to recover possession of the Bill of Exchange which was the subject of the suit of Parish vs. Hozey, sheriff, lately decided by this court, ante. They represent that on the 15th of April, 1839, they agreed to sell, to the defendant, a Bill of Exchange, &c. amounting to $1450, that said defendant did not comply with the principal condition of the contract, which was to pay the whole amount of the price thereof immediately, but only paid $500 on account of said price; and that consequently they have remained the owners of the bill. They further state that the defendant, having obtained possession of said bill, deposited the same, for collection, in the New Orleans Canal and Banking Company; that he and said bank are bound to deliver it up to them, and that, at all events, should they be unable to prove their title as owners of the hill, they are entitled to the vendor’s privilege on the same or its proceeds for the balance of said price. They pray that the defendants be condemned in solido to deliver up the bill in question, &c., and that the same be sequestered according to law.
A writ of sequestration was issued, by virtue of which the sheriff took said bill into his possession and safe keeping ; and afterwards the defendant joined issue by alleging the bill of exchange, sequestered, to be his property in consequence of his having purchased the same from the plaintiffs, and of his having-paid the price thereof, in the manner by him stated in his answer. Defendant further averred that by the sequestra-
No evidence whatever was adduced by the plaintiffs in support of their action; they solely relied on the-, admissions of the contract of sale and of the consideration thereof, contained in the defendant’s answer, expecting that said defendant should be required to prove the payment by him alleged; and it is now contended by their counsel that the judge a quo erred in deciding that those admissions must be coupled with the defendant’s statement of facts, tending to show his discharge, and his own right to the bill sequestered.
We cannot concur in opinion with the inferior court: The plaintiff’s action is based on an alleged contract of sale of the bill of exchange in question; the price, as they state, was $1450, payable immediately on the delivery of the bill, in current Mississippi funds to be taken at par, a part of which, ($500) was paid in -cash by the defendant, and judgment is prayed for the return of said bill or for the balance of its price. The defendant admits that he purchased the bill from the plaintiffs, and that he paid $500 in cash on account of the purchase money; but he further states, in his answer, that he paid the remainder in the transfer and assignment of a debt then due to him by the commercial firm of E. B. Cook & Co.; that the plaintiffs agreed to look to them for the said remainder; that the firm of Cook & Co. agreed and promised to pay said plaintiffs the amount due by .them to the defendant, so transferred in payment of the balance of the purchase money, and that such was the agreement at the time of the .purchase, and that the plaintiffs consented to receive a verbal transfer of said debt of Cook & Co. and the sum of $500 in full payment of
The defendant having admitted the material facts alleged in , & ° . the plaintiffs’ petition as the foundation of their action, said plaintiffs had perhaps nothing to prove ; but it was clearly the duty of the defendant to establish, by legal evidence, all the other matters by him set up in his answer, going to show his compliance with the terms of sale by the payment of the whole amount of the price thereof.
The ru-'-e ^at a Party wishing to avail himself of the confes-gj0ns made by the adverse party, cannot divide them, and must . j. v take them entire, does not apply to the admissions made in the , ,. - n . • n i ot% pleadings, but only to answers to interrogatories; Code oj Jrrac-^ce> •^58 5 OT to judicial confessions made according to the 2270 of the Louisiana Code ; the reason is, with regard J ° to answers to interrogatories, that they are called for hy the other party, that they are sworn to, and that it is not to be presumed that a party would state under oath any fact which he knew to he false. But to carrv the rule further and to apply J ri J it to the matters which are pleaded hy a party in his answer in evidence of the plaintiffs’ demand, after his having admitted the debt or obligation, would, in our opinion, he a strange and absurd doctrine. It is of every day’s occurrence, in practice, that a debtor, who is sued on a contract or note, admits its existence or his signature thereto, and then set up a plea of payment or other matter in discharge of his adversary’s claim. Surely, it cannot he pretended that, in such case, the defendant would acquire his discharge from the obligation or debt sued on, because, after having spared to his adversary the trouble of proving the signature to the note or execution of the contract, he thought proper to set up a plea of payment, which is often unfounded, and sorpetimes resorted to to make a show of defence. This would he a very dangerous practice, and, to say the least of it, a very inconvenient one; as, for fear of endangering their rights plaintiffs would always think themselves hound to prove their obligations, notwithstanding the
The present state of this cause makes it unnecessary to examine the questions' arising from the reconventional demand set up by the defendant, who, within our recent knowledge, having already exercised successfully his recourse in damages against the sheriff, would perhaps carry his pretensions too far, if he was again to attempt to make the plaintiffs liable for a loss for which we lately rendered a judgment in his favor against the person by whose fault it was shown to have been sustained ; 17 Louisiana Reports, 578.
It is, therefore, ordered, adjudged and decreed that the judgment of the District Court, be annulled, avoided and reversed; and that this cause be remanded for' a new trial according to the legal principles above established ; the defendant and ap-pellee paying costs in this court.