11 La. Ann. 708 | La. | 1856
The plaintiff claims the ownership of 230 shares of the capital stock of the Union Bank of Louisiana, alleging that she acquired the same by purchase under an execution issued on a judgment in her favor against her husband, F. M. Hereford, and prays to be recognized as such owner.
As no appeal has been taken from the judgment rendered by the court below, between the plaintiff and the bank, it is therefore unnecessary to notice the issues raised by the action of the latter. It is proper, however, to observe, that whatever may be the result of the controversy between the other litigating parties, the interest of the bank, as settled by that judgment, cannot he affected.
The executor of the late James McCalop, as intervenor, alleges that F. M. Hereford is indebted to the estate of the testator in the sum of $2379 84 with interest, according to the charter of the Union Bank, from the 26th of January, 1844, until paid, balance due on a promissory note of $3400, given by him to said bank for a loan on the 23d of December, 1842, and payable twelve months after date to the order of and endorsed by J. B. Hereford to John L. Lobdell, and by the latter also endorsed ; that in order to secure the loan thus obtained by him, F. M. Hereford also gave in pledge the 230 shares of the stock in question ; that the note was duly protested at maturity for non-payment, and subsequently reduced by partial payments to the amount claimed; and thus reduced, McCallop became the owner thereof, on the 7th of January, 1847, by payment, and as such subrogated to all the rights of the bank as plegee. The executor thereupon prays that the stock be sold after due proceedings, and the proceeds applied by privilege and preference to the payment of his claim.
The answer to the intervention sets up as matter of defence that McCalop had assumed, and was bound under his agreements of the 28th of October, 1846, and 7th of February, 1848, to pay all the debts due by F. M. Hereford to the Union Bank; that he not only refused to fulfil his obligations, but violated the same by obtaining the control of those debts, and thereby procuring the forced alienation of F. M. Hereford’s slaves, mortgaged to the bank at a great sacrifice, to wit: $9000, the difference' between the price of adjudication arid the real value thereof. F. M. Hereford claims as damages in re-convention this amount, and also the sum of $5000 as the hire of said slaves.
Prescription is also pleaded in bar to the action of the intervenor.
On the lOtlnof March, 1848, McCalop brought suit against F. M. Hereford for the recovery of the balance due on the note, (in which the allegations are similar to those set forth in the intervention,) and therein prayed for judgment in his favor, with all the rights and privileges attached to the note as subrogee of the hank. The plea of prescription is therefore unavailable.
The question which arises between the plaintiff and intervenor, and which is the principal question in the cause, is whether any right of pledge exists as
Under these circumstances, it is evident that McCalop, in making the alleged payment, had not such an interest as that required by the section of ihe Article of the Code to which we have adverted, so as to give rise to a legal subrogation in his favor. According to the clear and explicit terms of his agreement with the bank, the draft of $5000 must be considered as given in payment, and not merely as collateral security as contended for.
The plea in reconvention set up by F. M. Hereford is not well founded. As a pre-requisite to the recovery of damages the debtor must be put in default; C. C., 1906, 1906; 3 R.,400. It is clear, under the circumstances, that McCalop could not have been pul in delay. The stock was to have been transferred to him at a price to be fixed by the President and Cashier of the bank. No such price has ever been fixed. “It is of the essence of a sale that the price should be certain, fixed and determined by the parties. It may be left to the arbitration of a third person; but if such person cannot, or be unwilling to make the esti
It is, therefore, ordered, adjudged and decreed that the judgment of the court below be affirmed, with costs in both courts.