176 F. 657 | 5th Cir. | 1910
(after stating the facts as above). As the exception of the Lambón, Noel Rumber & Manufacturing Company admits the signature of the corporation to the contract sued on, the presumption is that it was for some purpose, and, as a corporation can hardly sign as a witness, that the Rambou, Noel Rumber & Manufacturing Company signed either as principal or surety; therefore we think it clear that the libel and amended libel state a cause of action against that corporation cognizable in admiralty.
_Vs to the exception of Victor Rambou the case cannot be quite as apparent, because he might have signed as a witness or agent of the Rambou, Noel Rumber & Manufacturing Company. The amended libel specifically charges that he signed as surety, and his contention seems to be, ‘‘You cannot prove it.”
The argument as to both exceptions is that, as the contract was made in Louisiana and the court sits in Louisiana, the Louisiana Civil Code controls as to tlie law and evidence; citing article 2278, Civ. Code Ra. (“Parol evidence shall not be received: * * * 3. To prove any promise to pay the debt of a third person”), and article 303!) of the same Code (“Suretyship cannot he presumed, it ought to be expressed and is to be restrained within the limits intended by the contract”), and section 858, Rev. St. U. S- (U. S- Comp. St. 1901, p. 059).
The answer to this is that, until the issues are made up by the sworn pleas of the respondents, the libelant will not be called upon to prove the allegations of his libel; and that even under the Louisiana law, which we do not decide will control as to the admissibility of evidence in this case, “Suretyship may be proved as against the face of a written instrument.” See Roberts & Crain v. Jenkins, 19 La. 453. This case suggests that article 347 of the Louisiana Code of Practice (and as to its prevailing authority when repugnant to or in conflict with the Civil Code, see Rev. St. Ra. § 514) provides for interrogatories on facts and articles, and the same is permissible in admiralty.
Further than this, we may say that the District Court of the United .States, sitting in admiralty, administers the highest equity, and whenever in admiralty a contract is involved, which on its face is ambiguous and needs explanation in order to administer justice between the parties, the rules of evidence governing the court are fully adequate. The Bark J. F. Spencer, 3 Ben. 337, Fed. Cas. No. 7,315; The Bark Vivid, 4 Ben. 319, Fed. Cas. No. 16,978; also Watts v. Camors, 415 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406, and cases there cited.
Section 858 of Revised Statutes of the United States relates to the competency of witnesses, and not to the admissibility of evidence. See Hobbs v. McLean, 117 U. S. 579, 6 Sup. Ct. 870, 29 L. Ed. 940.
The exceptions of the Rambou, Noel Rumber & Manufacturing
The exception of S. E. Wall, to the effect that he is a citizen of the Western district of Louisiana, and was served with process therein, is not good. Where two or more defendants are citizens of different districts of the state of Louisiana, the suit may be brought in either district. See section 2, Act March 3, 1881, 21 Stat. 507, c. 144 (U. S. Comp. St. 1901, p. 364).
The decree appealed from is reversed and the cause remanded, with instructions to overrule all the exceptions, and thereafter proceed according to admiralty rules and practice.
